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YALE   LECTURES   ON   THE 
RESPONSIBILITIES    OF  CITIZENSHIP 


THE   CONSTITUTION  OF   CANADA   IN   ITS 
HISTORY   AND    PRACTICAL   WORKING 


The  Constitution  of  Canada 

IN   ITS 

History  and  Practical 
Working 


By 

WILLIAM  RENWICK  RIDDELL,   LL.  D. 

Jxiatice  of  the  Suxyreme  Court  of  Ontario 


NEW  HAVEN:    YALE  UNIVERSITY  PRESS 

LONDON:    HUMPHREY  MILFORD 

OXFORD  UNIVERSITY  PRESS 

MDCCCCXVII 


69B28 


Copyright,  1917 
By  Yale  University  Press 


First  published,  April,  1917 


T4- 


TO 
ANNA    HESTER    KIRSOP    RIDDELL, 

<fiL\Ta.Tr]   TTaKTCDV, 

KAAOKArA©HI. 


t 

c 


*0 


v\  •i 


N. 


PREFACE 


These  four  lectures  in  the  Dodge  Foundation 
are  not  intended  to  give  a  formal  and  connected 
fi        account  of  the  Constitution  of  Canada,  but  rather 
S.       a  popular   exposition   in   a   manner  likely   to   be 
V    more  acceptable  to  a  non-legal  audience. 

The  subject  was  not  of  my  own  choosing,  but 

was   adopted  at  the  instance  of  friends  in  Yale 

i  University  who  were  good  enough  to  say  that  the 

^ )       Constitution  of  Canada  might  be  made  interesting 

to  the  class  of  Americans  whom  these  Lectures 

are  expected  to  reach. 

Those  desirous  of  a  more  extensive  knowledge 
of  the  subject  are  advised  to  consult  such  works 
as  the  following: 

"Parliamentary  Government  in  the  British 
Colonies,"  by  Alpheus  Todd,  C.M.G.,  etc.,  2d 
edition,  London,  Longmans,  Green  &  Co.,  1894. 

"Parliamentary  Government  in  England,"  by 
the  same  learned  and  accurate  writer,  2d  edition, 
London,  Longmans,  Green  &  Co.,  1889. 

"The  Canadian  Constitution,"  by  E.  R.  Cam- 
eron, K.C.,  Winnipeg,  Butterworth  &  Co.,  1915. 


X  PREFACE 

"Canada's  Federal  System,"  by  A.  H.  F. 
Lefroy,  K.C.,  Carswell  &  Co.,  Toronto,  1913. 

"The  Law  of  the  Canadian  Constitution,"  by 
Mr.  Justice  Clement,  3d  edition,  Carswell  &  Co., 
Toronto,  1916. 

"The  Law  of  Legislative  Power  in  Canada,"  by 
A.  H.  F.  Lefroy,  K.C.,  Toronto  Book  &  Publish- 
ing Co.,  Toronto,  1897-1898. 

"Parliamentary  Procedure  and  Practice  in  the 
Dominion  of  Canada,"  by  Sir  John  Bourinot,  4th 
edition  (Dr.  Flint's  edition),  Toronto,  Canada 
Law  Book  Company,  1916. 

"The  Hon.  Alexander  Mackenzie,  His  Life  and 
Times,"  by  William  Buckingham  and  (Sir) 
George  W.  Ross,  Rose  Publishing  Co.,  Toronto, 
1892. 

Any  of  the  several  Lives  of  Sir  John  A. 
Macdonald. 

The  historical  matter  is  to  be  found  scattered 
in  many  volumes.  Kingsford's  "History  of 
Canada,"  in  ten  volumes,  Russell  &  Hutchinson, 
Toronto,  1887  to  1898,  is  very  useful  but  must 
be  read  critically;  it  is  not  always  accurate  in 
minutiae. 

These  Lectures  are  submitted  in  the  hope  that 
they  may  tend  a  little  toward  increasing  the 
knowledge  of  our  system  by  our  friends  and 
neighbours    to    the    South,    and   in    the    confident 


PREFACE  xi 

belief,  born  of  many  years'  experience  among  both 
peoples,  that  anything  which  makes  the  one  better 
known  to  the  other  will  necessarily  tend  to  the 
increase  of  the  feeling  of  brotherhood  now  happily 
existing. 

It  has  been  the  dream  of  many  like-minded  that 
the  English-speaking  peoples  might  one  day  be 
all  as  one  in  matters  of  world  importance.  It 
may  be  that  there  never  will  be  a  treaty  of  paper 
and  ink  between  the  two  great  English-speaking 
nations ;  nor  as  I  think  is  it  necessary  or  even 
advisable  that  such  should  be.  But  to  my  mind 
it  is  as  certain  as  the  immutable  laws  of  morals, 
as  certain  as  the  track  of  the  planets  around  the 
sun,  as  the  stars  in  their  courses,  that  these 
peoples  of  kindred  origin,  kindred  tongue,  kindred 
institutions,  kindred  aspirations,  must  be  bound 
together  by  a  tie  which  is  infinitely  stronger  than 
a  parchment  bond,  that  they  must  stand  and 
march  and,  if  need  be,  fight  side  by  side  for  truth 
and  honour,  justice  and  righteousness  among  the 
nations. 

William  Ren  wick  Riddell,. 

Osgoode  Hall,  Toronto, 
February,   1917. 


CONTENTS 

PAGE 

Preface 

...... 

ix 

Lecture 

I: 

Historical       .... 

1 

Lecture 

II: 

The  Written  Constitution 

52 

Lecture 

III: 

The  Constitution  in  Its  Actual 

Working            .           .           . 

89 

Lecture 

IV: 

A  Comparative  View 

120 

Index 



161 

THE   CONSTITUTION 
OF   CANADA 


LECTURE  I 
HISTORICAL 

The  turning-point  in  the  history  of  this  Conti- 
nent, if  not  indeed  in  the  history  of  the  world, 
was  the  Conquest  of  Quebec  by  Wolfe  in  1759. 

Before  that  time  the  two  Great  Powers  of 
Western  Europe,  Great  Britain  and  France,  were 
not  very  unequally  matched  in  North  America — 
France  being  distinctly  superior  in  her  manage- 
ment of  the  aboriginal  inhabitants,  Britain  in  the 
occupation  of  territory  to  their  exclusion. 

The  Conquest,  followed  by  the  formal  cession 
of  Canada,  determined  for  all  time  that  France 
should  not  be  Mistress  of  the  New  World.  It 
was  still  more  important  in  that  by  removing  the 
fear  of  a  "natural  enemy"  to  the  North,  it  allowed 
the  English  Colonists  to  pay  the  greater  and  the 


2  CONSTITUTION  OF  CANADA 

more  effective  attention  to  their  own  affairs. 
What  many  had  prophesied,  and  all  should  have 
foreseen,  took  place:  the  Colonists  demanded  self- 
government  as  a  right,  and  when  they  could  not 
have  it  within  the  British  Empire  they  went  out 
from  the  Empire. 

The  Thirteen  Colonies  were  by  no  means  blind 
to  the  advantage  to  be  derived  from  Canada 
joining  them.  A  strong  printed  appeal  in  French 
was  circulated  in  Canada;  the  effect  was  negli- 
gible, the  ordinary  habitant  could  not  read  and 
such  of  the  French-Canadians  as  were  compelled 
by  their  profession  to  be  literate — I  mean  the 
priesthood — the  Continentalists  seemed  to  take 
pains  to  insult  and  antagonise.  Armed  force  was 
no  more  successful  than  printed  persuasion ;  the 
skill,  courage  and  endurance  of  Arnold  and  his 
invaders  in  1775-1776 — and  no  soldiers,  profes- 
sional or  amateur,  have  ever  shown  more  courage 
and  endurance  since  or  before  Xenophon's  Ten 
Thousand — were  in  vain  against  the  adamant  of 
Quebec,  the  skill  of  Sir  Guy  Carleton  and  the 
bravery  of  his  soldiers,  British  and  Canadian. 

And  so  Canada  remained  true  to  the  British 
flag. 

The  loyalty  of  the  French-Canadians  to 
Britain  is,  at  least  in  part,  to  be  attributed  to 
what  is  known  as  the  Quebec  Act  of  1774.^ 


HISTORICAL  3 

At  the  time  of  the  Conquest,  the  condition  of 
Canada  was  substantially  that  of  a  Province  of 
France;  so  far  as  the  government  was  concerned, 
New  France  was  almost  a  transcript  of  the  old 
France  across  the  sea.^ 

"The  King  of  France  was  represented  by  a 
Governor  appointed  by  the  King — usually  a  noble 
who  desired  to  replenish  his  coffers  from  the 
wealth  of  the  new  land;  he  had  in  Canada  much 
the  same  powers  as  the  King  in  France;  but  he 
had  always  with  him  a  watchful  guardian  of  the 
interests  of  the  King  and  of  France — the  Intend- 
ant — and  the  Intendant  had  also  very  large 
powers  indeed,  particularly  in  respect  of  finance, 
police  and  justice.  Then  there  was  a  Council,  not 
elected  but  appointed,  who  acted  as  a  combination 
of  judge,  lawyer  and  administrator — the  King 
however  could  disapprove  and  thereby  nullify  any 
act  of  theirs. 

"There  was  no  such  body  as  a  Parliament  in 
the  English  sense,  but  the  country  was  governed 
on  feudal  principles." 

In  the  country  were  the  nobility — the  no- 
blesse— the  seigniors  who  owned  the  land — every 
Canadian  noble  was  a  seignior  though  some 
seigniors  were  not  noble.  The  seigniors  paid 
homage  to  the  King  or  some  intermediate  superior, 


4  CONSTITUTION  OF  CANADA 

for  subinfeudation  was  by  no  means  unknown; 
they  had  under  them  the  peasants,  "habitants" 
(or  rather  "habitans")  as  they  called  themselves, 
to  whom  they  leased  land  to  be  held  on  much  the 
same  terms  as  the  lands  were  held  by  the  peas- 
antry in  France.  This  seignioral  tenure  was 
introduced  substantially  by  Richelieu  in  1627, 
and  remained  in  great  measure  practically  un- 
changed in  Lower  Canada  till  1854. 

The  commonalty  called  themselves  "habitans," 
as  they  did  not  like  the  word  "censitaires"  or 
"roturiers"  used  in  old  France  to  denote  those  in 
a  similar  condition  there.  These  terms  were  con- 
sidered to  imply  a  greater  degree  of  dependence 
upon  the  feudal  lord  than  the  free  Canadians  were 
willing  to  acknowledge  themselves  to  be  subject 
to.  We  have  no  English  word  an  exact  equivalent 
of  either  "censitaire"  or  "roturier"  or  "habitant," 
but  "tenant"  perhaps  comes  nearest  in  meaning. 

Not  only  did  a  seignior  when  he  succeeded  to 
his  estate  pay  homage  to  the  King  or  other  his 
feudal  superior,  but  when  the  seigniory  changed 
ownership  by  sale  or  gift  or  by  inheritance  other 
than  in  the  direct  line,  a  part  of  its  value,  usually 
(at  least  in  theory)  a  fifth  part,  had  to  be  paid 
to  such  superior.  It  was  the  custom  to  remit 
one-third  of  this  amount  so  paid,  but  this  custom 
does  not  seem  to  have  been  enforceable  at  law. 


HISTORICAL  5 

The  seignior,  if  an  individual  and  not,  as  some- 
times happened,  a  religious  order,  also  had  the 
privilege  of  being  eligible  to  be  appointed  a 
member  of  the  Superior  Council — if  the  authori- 
ties saw  fit,  he  might  also  have  a  commission  in 
the  militia ;  for  in  time  of  war  all  the  inhabitants 
of  Canada  might  be  called  upon  to  do  service  in 
the  army  under  the  Governor  or  other  commander. 
In  all  but  a  very  few  instances,  he  did  not  own  his 
land  in  the  fullest  sense — the  Crown  reserved 
mines,  minerals,  oak-timber  and  masts  for  ship- 
building, such  lands  as  might  be  required  for 
military  purposes,  and  the  like. 

In  France,  as  a  rule,  the  seignior  had,  as  an 
incident  to  the  ownership  of  property,  the  right 
of  exercising  judicial  powers — in  Canada  the  mere 
ownership  of  a  seigniory  did  not  carry  with  it  such 
right.  It  could  be  obtained  only  by  express  grant. 
Most  of  those  who  had  seigniories  granted  after 
1633  received  such  grant,  and  some  exercised  the 
powers  given.  Sometimes  the  judicial  power 
extended  to  all  grades  of  jurisdiction,  high,  mesne 
and  low  {haute,  moyenne  ou  basse  justice) ^  some- 
times only  the  mesne  and  low,  and  sometimes  only 
the  low  justice. 

The  seigniors  whatever  their  powers  very  rarely 
exercised  the  right  of  haute  justice;  cases  of  any 
importance  were  generally  left  to  the  royal  courts 


6  CONSTITUTION  OF  CANADA 

to  dispose  of,  whether  civil  or  criminal.  There  is 
no  record  of  the  death  penalty  having  been 
inflicted  by  any  seignior,  although  very  many  had 
the  power  in  law  to  inflict  capital  punishment. 

The  habitant  as  "censitaire"  (tenant) — I  have 
pointed  out  that  the  words  are  not  precisely 
synonymous — was  under  many  feudal  obligations 
familiar  to  readers  of  Blackstone;  for  example, 
he  was  bound  to  take  his  grain  for  domestic  use 
to  be  ground  at  the  seignior's  mill,  and  to  pay  for 
such  grinding  usually  one-fourteenth  of  the  grain. 
If  he  went  to  another  mill,  that  did  not  relieve 
him  from  paying  liis  seignior;  and  his  punish- 
ment might  be  even  greater,  for  in  one  judgment 
it  was  provided  that  a  habitant  who  took  grain 
to  any  mill  but  his  seignior  s  should  be  liable  to 
have  both  the  grain  and  the  vehicle  carrying  it 
confiscated  by  the  seignior. 

In  a  few  instances  the  droit  de  four  banal  also 
existed:  the  seignior  built  an  oven,  and  the  habi- 
tants had  to  bring  their  dough  to  be  baked  in  the 
oven,  paying  for  the  privilege,  of  course,  usually 
one-twenty-fourth  of  the  bread. 

In  France  there  was  a  long  list  of  "banalites" 
which  the  seignior  had  as  an  incident  to  his 
possession  of  a  fief:  but  the  grist-mill  and  bake- 
oven  banalities  are  all  that  were  ever  claimed  in 
Canada  and  thev  seem  to  have  been  exercisable 


HISTORICAL  7 

only  because  of  a  clause  in  the  "leases"  to  the 
habitants. 

If  a  habitant,  being  the  feudal  inferior,  desired 
to  dispose  of  the  land  which  he  held,  he  was  obliged 
to  pay  a  substantial  part  of  the  purchase  money 
to  the  seignior;  and  worse,  the  seignior  might 
himself  take  the  land  within  forty  days  of  the  sale. 
He  was  liable  to  the  corvee,  or  forced  labour,  for 
his  seignior,  as  in  France ;  he  must  in  some 
instances  give  the  seignior  one  fish  out  of  every 
eleven  of  those  caught  in  seigniorial  waters ;  wood 
and  stone  might  be  taken  from  his  land  by  the 
seignior  to  build  or  repair  manor-house,  church 
or  mill. 

But  while  the  peasants  had  no  part  in  the 
government  of  the  country,  and  were  inferiors, 
their  lot  was  immensely  superior  to  that  of  their 
brethren  in  the  old  land,  as  they  themselves  were 
essentially  superior  to  the  peasants  of  old  France 
in  intelligence  and  manners. 

They  were  free,  bold  and  adventurous,  frugal, 
industrious  and  moral ;  and  made  the  very  best  of 
soldiers  for  the  kind  of  country  in  which  they 
were  called  upon  to  fight. 

Next  to,  if  not  sometimes  above,  the  seignior, 
was  the  Cure — sometimes  the  only  one  in  the 
seigniory  except  (or  possibly  not  excepting)  the 
seignior,  who  could  read  and  write.     The  essen- 


8  CONSTITUTION  OF  CANADA 

tially  religious  character  of  the  French-Canadian 
is  seen  in  the  high  place  the  Cure  is  held  in  his 
regard — a  place  which  is  but  little,  if  any,  lower 
now  than  it  was  a  century  and  a  half  ago.  Indeed 
it  has  been  said  that  the  Canadian  Cure  exercised 
in  Canada  the  power  in  France  of  the  King,  the 
noble  and  the  priest. 

The  members  of  the  priesthood — in  large  meas- 
ure from  old  France — were  devoted  sons  of  the 
Church,  their  love  for  France  not  clashing  with 
or  excelling  their  love  for  their  spiritual  mother. 
But  neither  priest  nor  peasant  had  any  part  in 
making  the  laws  by  which  they  both  were 
governed;  their  government  was  arbitrary  and 
military;  they  were  accustomed  to  obey  their 
superiors — and  anything  more  unlike  a  constitu- 
tion in  our  latter-day  sense  than  was  the  mode  of 
government  of  that  happy,  fearless,  primitive 
people  it  would  be  hard  to  find. 

In  1759  Quebec  was  taken  by  Wolfe,  and  the 
first  period  of  Canadian  Constitutional  History 
came  to  an  end.  All  Canada  in  1760  was  under 
the  power  of  Britain,  and  the  military  commanders 
in  the  army  of  the  conquerors  governed  the  land 
as  a  conquered  country.  But  the  religion  of  the 
Canadians  was  not  interfered  with;  Catholics  as 
they  were,  and  their  conquerors  belonging  to  a 
Protestant  nation,  their  law  (speaking  generally)^ 


HISTORICAL  9 

based  upon  the  Civil  Law  of  Rome  was  adminis- 
tered by  a  conqueror  whose  law  was  based  on  the 
Common  Law  of  England.^  Their  French  customs 
were  respected,  the  only  strange  law  imposed  upon 
them  was  the  criminal  law  of  England,  which  was 
more  merciful  than  their  own,  which  permitted 
torture,  breaking  on  the  wheel  and  arbitrary 
imprisonment. 

Except  as  modified  by  the  legislation  of  Canada 
herself,  the  English  Criminal  Law  has  ever  since 
been  in  force,  and  no  complaint  ever  was  heard 
from  the  Canadians  and  no  desire  to  return  to 
the  French  system. 

The  definitive  treaty  between  Great  Britain  and 
France — the  Treaty  of  Paris  signed  10th  February, 
1763 — placed  the  allegiance  of  Canada  beyond  any 
doubt,  as  by  that  instrument  France  ceded  her  to 
Great  Britain.  It  was  not,  however,  till  October  of 
that  year  that  any  change  was  made  in  the  govern- 
ment of  the  new  country,  thereby  inaugurating  the 
third  period  of  our  Constitutional  history.  On  the 
7th  October,  1763,  a  Royal  Proclamation  was  issued 
establishing  in  "the  extensive  and  valuable  acquisi- 
tion in  America  four  distinct  and  separate  Govern- 
ments .  .  .  Quebec,  East  Florida,  West  Florida  and 
Grenada."* 

Quebec,  with  which  alone  we  are  concerned,  is 
defined  in  the  Proclamation  in  such  a  way  as  to 


10  CONSTITUTION  OF  CANADA 

make  it  wholly  impossible  to  follow  the  descrip- 
tion,^ and  indeed  no  good  end  would  be  achieved 
by  ascertaining  the  precise  meaning  of  the  words 
used. 

Whatever  may  have  been  in  the  mind  of  the 
draughtsman  of  this  description,  it  was  consid- 
ered effective  to  form  a  "Government"  called 
Quebec  as  a  political  entity.  By  this  Royal 
Proclamation,  the  Governor  was  given  power,  with 
the  advice  and  consent  of  the  Council,  to  summon 
and  call  General  Assemblies,  and  the  Governor 
with  the  consent  of  the  Council  and  Representa- 
tives was  to  make  laws  for  the  welfare  and  good 
government  of  the  Colony  "as  near  as  may  be 
agreeable  to  the  laws  of  England."  He  was  also, 
with  the  advice  of  the  Council,  to  erect  Courts  of 
Justice  to  hear  and  determine  all  causes  "as  near 
as  may  be  agreeable  to  the  laws  of  England"  with 
right  of  appeal  to  the  Privy  Council  at  West- 
minster. 

It  will  be  at  once  apparent  what  a  tremendous 
change  was  intended  to  be  brought  about  under 
this  Proclamation.  The  Canadian  had  lived 
under  a  feudal  system,  looking  up  to  and  relying 
upon  his  seignior  or  feudal  lord ;  there  was  now  to 
be  an  Assembly  of  Representatives,  though  few  of 
the  Canadians  could  have  any  part  in  selecting 
the  members :  the   former   civil  law  under  which 


HISTORICAL  11 

they  were  born  and  had  lived  was  to  be  wholly 
abolished  and  the  English  law  introduced,  old 
customs  were  to  become  naught  and  all  was  to 
be  in  confusion.  Courts  of  King's  Bench  and 
Common  Pleas  were  in  fact  established  and  Jus- 
tices of  the  Peace  were  appointed  with  inferior 
jurisdiction. 

While  in  name  and  theory,  the  English  law  was 
in  force  in  civil  matters,  in  fact,  it  was  found 
impracticable  to  apply  it  to  the  full  extent,  and 
great  uncertainty  prevailed.  Many  if  not  most 
of  the  English-speaking  inhabitants  of  Canada 
came  from  the  English  colonies  to  the  South,  some, 
too,  came  from  England;  and  these,  Anglo-Saxon 
fashion,  practically  monopolised  the  control  of 
the  country — and  they  appear  to  have  "run"  the 
Courts  as  well.  The  many  French-Canadians  and 
the  few  British-Canadians  found  it  impossible  to 
agree ;  complaint  and  countercomplaint  were  made 
to  the  King. 

An  Executive  Council  was  formed,  consisting 
of  a  group  of  officials  appointed  by  the  Governor 
(this  was  not  unlike  the  old  regime)  and  in  it, 
many  well-known  men  of  the  Canadian  noblesse 
found  a  place. 

The  French-Canadians  ignored  the  provisions 
for  an  Assembly  and  it  seemed  impossible  to  get 
them  to  take  any  interest  in  a  movement  for  such 


12  CONSTITUTION  OF  CANADA 

a  body :  it  was  not  thought  practicable  to  institute 
a  representative  chamber  under  such  circum- 
stances. Petitions  were  presented  to  the  Governor 
signed  by  the  British  residents  only,  asking  for  a 
Legislative  Assembly,  but  the  Governor  reported 
to  the  Home  Government  that  the  Canadians  had 
refused  to  join  in  the  petition.  The  main,  though 
not  perhaps  the  only  difficulty,  lay  in  religion. 
While  the  French  had  been  by  the  Treaty  of  Paris 
assured  of  the  free  exercise  of  their  religion,  it 
was  apparent  that  no  Roman  Catholic  could  be 
admitted  to  a  British  Parliamentary  body  con- 
sistently with  the  principles  then  professed  in 
reference  to  Parliament  in  the  United  King- 
dom— while  it  would  be  absurd  to  expect  that 
the  numerous  French-Canadian  Catholics  would 
submit  to  be  governed  by  a  handful  of  Protestants, 
not  one-hundredth  of  their  number.  The  English 
did  not  want  an  Assembly  with  Roman  Catholics 
in  it;  the  French  would  not  have  one  without. 

The  English-speaking  part  of  the  community, 
of  whom  the  early  Governors  sometimes  speak  in 
no  very  flattering  terms,  objected  even  to  the 
French  Catholics  sitting  on  their  own  juries  in 
their  own  Courts,  and  often  acted  in  a  most 
arbitrary  and  intolerant  manner.  The  land  was 
in  a  state  of  chaos,  and  the  whole  legal  machinery 
paralysed.     The  Canadians   did  not  like  juries, 


HISTORICAL  13 

expressing  their  wonder  that  the  English  should 
think  their  property  safer  in  the  determination  of 
tailors  and  shoemakers  than  in  that  of  their 
Judges — besides  jury  trials  cost  too  much;  the 
English  had  then  the  same  firm  belief  in  the  jury 
system  which  characterises  some  of  their  descend- 
ants to  this  day.^ 

Finally  in  June,  1774,  the  Quebec  Act^  passed 
the  Houses  of  Parliament  at  Westminster,  and  the 
fourth  period  began.  Notwithstanding  the  vig- 
orous protest  of  the  Corporation  of  London, 
( influenced  probably  by  the  English  in  Quebec  and 
certainly  affecting  to  act  in  their  interest),  "that 
the  Roman  Catholic  religion,  which  is  known  to 
be  idolatrous  and  bloody"  was  "established  by  this 
bill";  and  notwithstanding  that  the  King  was 
reminded  by  them  that  his  family  had  been  called 
to  the  throne  in  consequence  of  the  exclusion  of 
the  Roman  Catholic  ancient  branch  of  the  Stuart 
line  (and  he  was  solemnly  told  that  the  failure  to 
provide  in  civil  cases  for  jury  trials,  "that  wonder- 
ful effort  of  human  reason,"  was  a  breach  of  the 
promises  made  to  British  immigrants,  and  vio- 
lated His  Majesty's  promises  in  His  Proclamation 
of  1763),  George  III  signed  the  bill,  and  it  became 
law. 

After  the  bill  was  passed  it  was  petitioned 
against  and  its  repeal  urged  by  "His  Majesty's 


14  CONSTITUTION  OF  CANADA 

most  loyal  and  dutiful  .  .  .  ancient  subjects  set- 
tled in  the  Province  of  Quebec,"  but  in  vain.* 

This  Act  defined  the  Province  of  Quebec  as 
containing  all  the  territory  now  the  Provinces  of 
Quebec  and  Ontario  and  the  "hinterland"  of  the 
English  colonies  to  the  South,  down  the  Missis- 
sippi to  Louisiana.^  The  Proclamation  of  1763 
was  annulled,  Roman  Catholics  were  permitted  to 
enjoy  the  free  exercise  of  their  religion  and  their 
clergy  to  receive  their  accustomed  dues — all 
matters  of  property  and  civil  rights  were  to  be 
decided  according  to  the  laws  of  Canada,  i.e., 
French-Canadian  laws,  but  the  criminal  law  of 
England  was  to  continue.  A  council  appointed 
by  the  King  was  provided  for  which  should  legis- 
late for  the  Colony,  and  there  was  to  be  an 
executive  council  of  five  as  a  Privy  Council — the 
scheme  for  a  representative  and  elective  assembly 
contained  in  the  Proclamation  of  1763  was  not 
continued  in  the  Statute, — the  Statute,  notwith- 
standing Fox's  protest,  declaring  it  "inexpedient 
to  call  an  Assembly."^" 

During  the  time  the  Quebec  Act  was  in  incuba- 
tion, we  see  no  signs  of  disloyalty  on  the  part  of 
the  French-Canadians ;  and  indeed  there  could 
hardly  be  a  real  desire  on  their  part  to  join  the 
discontented  colonies. 

It  is  hard  to  see  how  a  French-Canadian  Catho- 


HISTORICAL  15 

lie  could  imagine  that  his  lot  would  be  bettered  by 
joining  with  the  people  of  New  England,  the  hated 
Bastonais,  his  hereditary  foes.  We  know  that 
in  the  Thirteen  Colonies,  both  pulpit  and  Con- 
gress expressed  the  greatest  alarm  at  the  tolera- 
tion of  popery,  that  "blood-thirsty,  idolatrous 
and  hypocritical  creed,"  and  loudly  denounced 
the  betrayal  of  Protestant  principles,  shown  in 
allowing  the  free  exercise  of  their  religion  to  the 
Catholic  Canadians. 

Notwithstanding  the  Address  of  the  Continental 
Congress  of  1774,^^  filled  with  philosophy  and 
appeals  to  Beccaria  and  Montesquieu,  which  was 
signed  by  Henry  Middleton,  President,  translated 
into  French  and  printed  in  that  language  in 
Philadelphia,  and  then  generally  distributed 
among  the  Canadians,  they  remained  loyal  to  the 
British  Crown — Sir  Guy  Carleton  "pursuing  the 
exact  reverse  in  every  particular  of  the  infatuated 
policy  which  alienated  and  lost  to  the  Empire  the 
Thirteen  Colonies." 

Some  of  the  seigniors  who,  at  this  time,  en- 
deavoured to  exercise  in  favour  of  Britain  their 
feudal  right  to  call  the  habitants  of  their 
seigniories  into  the  field,  found  them  refractory: 
they  refused  to  bear  arms  for  the  conquering 
British — but  at  the  same  time  they  did  not  join 
the  Americans  in  any  considerable  numbers. 


16  CONSTITUTION  OF  CANADA 

There  can  be  little,  if  any,  doubt  that  the 
Quebec  Act  helped  to  reconcile  the  leaders  of  the 
Canadians  to  British  rule  and  so  played  no  small 
part  in  assuring  the  loyalty  of  French-Canada  to 
the  Empire. 

The  first  Legislative  Council  under  the  new 
system  met  in  August,  1775,  the  Act  coming  into 
force.  May  1  of  the  same  year. 

The  inhabitants  of  what  is  now  called  Quebec 
remained  in  great  part  French;  and  as  to  those 
in  that  part  of  Canada  there  was  little  trouble 
arising  from  the  provisions  of  the  Quebec  Act. 
The  English  remained  discontented  for  a  time 
with  the  change  in  the  law  in  civil  matters,  but 
experience  showed  that  Canadian  law,  based  as  it 
was  on  the  Civil  Law,  was  not  much  different  from 
the  English  law  in  commercial  matters,  which 
were  the  concern  of  many  of  the  English-speaking 
inhabitants.^^  The  English  criminal  law  was  not 
objected  to  by  the  Frenchman, — bloody  as  it  was, 
it  was  less  barbarous  than  his  own. 

In  Lower  Canada,  the  disputes  between  the  old 
and  the  new  Canadians,  the  recent  and  the  ancient 
subjects  of  the  Crown,  had  continued.  Of  the 
twenty-two  members  who  formed  the  first  Legis- 
lative Council,  eight  indeed  were  French  and 
Catholic,  the  Oath  of  Supremacy  having  been 
waived  in  their  favour  ;^^  but  the  English  persisted 


HISTORICAL  17 

in  their  attempts  to  shew  "the  d d  Frenchmen 

the  difference  between  the  conquerors  and  the  con- 
quered"— they  feared  or  pretended  to  fear  their 
loyalty,  charged  them  semi-officially  with  being 
"rank  rebels" ;  and  in  general  acted  as  "patriots" 
(self-styled)  are  wont  to  act. 

That  was  not  the  only  difficulty — the  Revolu- 
tionary War  caused  the  immigration  into  the 
western  part  of  Canada,  afterwards  Canada 
West,^*  of  a  very  large  number  of  Loyalists  who 
had  left  home  and  property  to  follow  their  flag 
and  retain  their  allegiance.  These  were  accus- 
tomed to  English  law  and  customs,  and  fretted 
under  the  foreign  law  to  which  they  were  subjected 
in  Canada. 

The  French  law  and  customs  seemed  to  these 
vigorous  and  sturdy  Anglo-Saxons  absurd  and 
intolerable:  and  the  Protestantism  of  the  new- 
comers was  repulsive  to  the  devout  Catholic 
French-Canadians.  The  United  Empire  Loyalists 
had  come  from  the  New  England  States  and  else- 
where in  the  Thirteen  Colonies  and  had  been  accus- 
tomed to  freedom  and  a  large  measure  of  self- 
government;  they  could  not  tolerate  the  irrespon- 
sible control  of  an  appointed  council,  and  petition 
after  petition  made  its  way  to  the  King  claiming 
relief. 


18  CONSTITUTION  OF  CANADA 

The  Home  authorities  at  length  acceded  to  the 
request  of  the  new  colonists  in  the  West  who  by 
1790  were  more  than  30,000  in  number;  and 
what  is  generally  known  as  the  Constitutional 
Act^^  was  passed  by  the  British  Parliament  in 
1791.  The  Act  was  promoted  by  Pitt,  and 
naturally  met  with  strong  opposition.  Before  the 
bar  of  the  House  of  Commons  there  was  heard  a 
representative  of  the  English  colonists  in  Quebec, 
the  well-known  Adam  Lymburner;  he  vigorously 
protested  against  any  division  of  the  province,  and 
demanded  instead,  the  repeal  of  the  Quebec  Act. 
In  the  House  were  heard  the  usual  arguments 
against  Roman  Catholics  being  admitted  to  a 
share  of  the  government  and  against  the  imposi- 
tion upon  free-born  Britons  of  foreign  law  which 
determined  rights  by  the  agency  of  judges  instead 
of  juries,  whose  rules  were  those  derived  from  the 
Roman  law  and  not  from  the  semi-divine  Common 
Law  of  England.  The  merchants  in  London 
having  trade  relations  with  Canada  also  petitioned 
against  it.  Fox  attacked  the  bill  as  not  liberal 
enough — he  thought  that  Canada  should  have  a 
constitution  consistent  with  the  principles  of  free- 
dom. He  also  criticised  the  provision  for  the 
setting  aside  of  lands  for  the  support  of  the 
Protestant  clergy,  and  objected  to  the  division 
of  the  Colony  into  two  parts  of  which  one  would 


HISTORICAL  19 

necessarily  be  almost  wholly  French,  the  other 
English. 

All  opposition,  however,  was  overborne  by  Pitt. 
By  this  Act,^®  which  brought  in  the  fifth  period, 
Canada  was  divided  into  two  parts,  Canada  East 
or  Lower  Canada,  and  Canada  West  or  Upper 
Canada  (now  Quebec  and  Ontario).  To  each 
were  given  a  Legislative  Assembly  to  be  elected 
by  the  people  and  an  upper  house  called  the 
Legislative  Council,  whose  members  were  nomi- 
nated for  life  by  the  Crown.  The  Crown  also 
appointed  all  the  public  officers,  including  the 
members  of  the  Executive  Council  for  each  Prov- 
ince. The  free  exercise  of  the  Roman  Catholic 
religion  was  once  more  guaranteed;  and  the 
Crown  agreed  to  set  aside  one-eighth  part  of  all 
unallotted  Crown  lands  for  the  support  of  a 
Protestant  clergy.  The  Home  authorities,  also, 
reserved  the  right  to  levy  duties  for  the  regulation 
of  navigation  and  commerce. 

The  object  of  this  Act  is  described  by  Lord 
Granville  to  be  to  "assimilate  the  Constitution  of 
Canada  to  that  of  Great  Britain  as  nearly  as  the 
difference  arising  from  the  manners  of  the  people 
and  from  the  present  situation  of  the  Province, 
will  admit." 

In  Upper  Canada  the  first  Provincial  Parlia- 
ment met  at  Newark  (now  Niagara)  in  1792:  and 


20  CONSTITUTION  OF  CANADA 

from  that  time  onward  the  flood  of  legislation  has 
never  failed.  Courts  were  established,  the  laws  of 
England  introduced,  new  laws  made.  The  Colony 
rapidly  increased  in  population  and  wealth — in 
twenty  years  the  population  of  Upper  Canada 
was  estimated  to  have  risen  to  77,000 — and  there 
were  generally  reasonable  harmony  and  good  will. 

In  Lower  Canada,  the  English  and  French- 
Canadians  continued  to  quarrel  till  the  War  of 
1812  brought  about  at  least  an  external  peace. 

But  in  both  Canadas,  the  curse  of  an  appointed 
and  irresponsible  executive  became  more  apparent 
as  time  went  on,  riches  increased  and  affairs 
became  more  complex — benevolent  despotism  does 
not  answer  for  any  but  the  simplest  communities. 

In  the  Upper  Province,  the  Executive  Council 
became  an  oligarchy,  nominated  by  the  Governor 
from  among  public  officers,  judges,  bishops,  mem- 
bers of  the  Legislative  Council,  etc.  These  were 
a  privileged  class,  monopolised  the  offices,  obtained 
large  grants  of  land  and  generally  acted  as  irre- 
sponsible favourites  of  royalty  are  wont  to  act. 

The  Legislative  Assembly  fought  against  this 
tyranny;  but  the  placemen  long  bade  defiance  to 
the  popular  body. 

The  nominated  Legislative  Council,  too,  formed 
on  the  model  of  the  House  of  Lords  (but  not 
hereditary ),^^  claimed  and  exercised  the  right  to 


HISTORICAL  21 

reject  and  even  to  amend  money  bills — and  as  the 
Crown  had  a  permanent  civil  list,  the  Legislative 
(i.e.,  the  representative)  Assembly  was  helpless/* 

Fierce  conflicts  arose,  the  representative  body 
claiming  that  the  Ministers  of  the  Crown  should 
be  responsible  to  them — but  the  body  of  oflBce- 
holders,  who  were  connected  by  social  ties,  common 
interest  and  sometimes  family  relationship — and 
who  were  accordingly  called  the  "Family  Com- 
pact"— resisted  all  attacks. 

A  rebellion,  largely  due  to  the  obstinate  folly — 
or  worse — of  the  Governor,  broke  out  at  length 
in  1837,  but  it  was  quickly  quelled — Canadians 
have  always  been  too  loyal  to  permit  of  the 
success  of  a  rebellion  against  the  Crown. 

In  Lower  Canada,  matters  had  taken  even  a 
worse  course — the  minority  who  were  English  in 
blood  and  spirit  had  grown  not  only  in  numbers 
but  in  influence — most  of  the  Legislative  and 
Executive  Councillors  were  selected  by  the  Gov- 
ernors from  their  ranks.  The  French-Canadians, 
loyal  as  they  were,  were  looked  upon  still  as  a 
conquered  people  and  were  to  be  "kept  in  their 
place."  The  Assembly  was  naturally  almost 
wholly  French  and  Catholic — while  the  Councils 
were  largely  English  and  Protestant.  The  Anglo- 
Saxon  never  forgot  his  dearly  prized  superiority — 
his  race  and  language  continued  to  be  the  very 


22  CONSTITUTION  OF  CANADA 

best.  When  a  Governor  replied  to  the  Address 
from  the  Assembly  in  French  before  speaking  in 
English,  he  was  roundly  denounced  by  the  English 
press.  His  right  to  speak  publicly  any  language 
but  his  own  was  denied,  and  the  precedence  given 
to  the  French  language  was  "a  base  betrayal  of 
British  sovereignty"  and  "would  lead  to  the 
degradation  of  the  mother  country."  One  of  the 
ablest  of  their  advocates  went  so  far  as  to  say, 
"Lower  Canada  must  be  English  at  the  expense, 
if  necessary,  of  not  being  British" — language  as 
significant  as  it  is  intelligible. 

Most  of  the  troubles,  however,  were  financial. 
The  Assembly  made  the  same  claims  as  its  sister 
Assembly  in  Upper  Canada  and  with  the  like 
success — or  want  of  success. 

Petitions  were  sent  to  the  Home  Government 
by  the  outraged  majority,  but  in  vain.  The  Eng- 
lish-Canadians openly  expressed  their  purpose  to 
make  Quebec  an  English  colony — and  in  Lower 
Canada  also  a  rebellion  broke  out — and  this  also 
was  quickly  quelled.  The  two  movements  were 
largely  independent  of  each  other,  although  the 
"Patriots,"  alias  "Rebels,"  in  each  province  were 
in  communication  with  those  in  the  other. 

At  this  stage,  the  Government  at  Westminster 
induced  John  George  Lambton,  Lord  Durham,  to 
go  to  Canada  and  make  a  thorough  investigation 


HISTORICAL  23 

into  the  causes  of  the  troubles  and  to  suggest  a 
remedy.  Lord  Durham's  Report  is  still  an  inex- 
haustible well  of  fact  from  which  all  future  his- 
torians, constitutional  and  otherwise,  must  draw. 
His  profound  sympathy  with  all  efforts  toward 
freedom,  his  knowledge  of  the  Constitution  of  the 
Motherland  and  his  broad  human  outlook,  all 
fitted  him  for  his  task.  It  is  not  too  much  to  say, 
that  all  Canadians  and  all  lovers  of  Constitutional 
and  Representative  Government  throughout  the 
British  world,  owe  John  George  Lambton  an 
eternal  debt  of  gratitude. 

As  the  result  of  his  efforts,  the  Queen's  Message 
in  1839  recommended  the  Union  of  Upper  and 
Lower  Canada;  but  the  Government  got  into 
trouble,  and  moreover  there  was  much  difference 
of  opinion  in  Parliament.  Finally,  however,  the 
broad  Imperial  views  of  Lord  Durham — because 
Lord  Durham  was  an  Imperialist  in  the  sense  in 
which  we  now  use  the  term — made  their  impression 
upon  Lord  John  Russell  and  the  Prime  Minister; 
and  in  1840  the  Union  Bill  drafted  by  Sir  James 
Stuart  was  introduced  into  the  House  of  Commons 
by  Lord  John.  It  was  passed  without  much 
change  or  opposition,  received  the  Royal  assent 
July  23,  1840,  and  came  into  force  in  February, 
1841,  and  thus  began  the  sixth  period. 

The    main    characteristic    of    the    constitution 


24  CONSTITUTION  OF  CANADA 

given  by  this  Act  is  that  Responsible  Government 
was  now  at  length  granted — Her  Majesty's 
Government  in  Canada  were  responsible  to  the 
people  of  Canada  and  not  simply  to  the  Home 
authorities.  Before  this,  while  full  legislative 
powers  were  given  to  the  Provinces,  Responsible 
Government  was  withheld — and  the  only  remedy 
the  people  had  when  their  grievances  grew  acute, 
was  to  refuse  supply. 

By  the  Union  Act,  however,  much  was  to  be 
changed.  The  two  Provinces  became  the  Province 
of  Canada,  for  which  a  Legislative  Assembly  was 
to  be  elected  with  forty-two  members  from  each 
section.  A  Legislative  Council  was  to  be  nomi- 
nated by  the  Governor,  not  less  in  number  than 
twenty,  increased  from  time  to  time  as  should  be 
thought  fit,  the  Councillors  to  hold  office  for  life. 
The  Council  was  to  be  presided  over  by  a  Speaker 
appointed  by  the  Government;  the  Assembly  was 
to  elect  its  own  Speaker.  All  written  and  printed 
documents  referring  to  the  election  of  members, 
summoning  and  proroguing  of  the  Legislature, 
and  proceedings  of  either  House,  were  to  be  in 
English  alone.  The  laws  in  force  in  either  section 
of  Canada  were  to  continue  in  force  until  repealed 
or  amended ;  and  courts  were  continued,  etc.  The 
territorial  and  other  hereditary  revenues  of  the 
Crown  were  surrendered  for  a  fixed  sum — and  it 


HISTORICAL  26 

may  be  said  in  general  that  the  new  Constitution 
was  as  exact  a  copy  of  that  of  the  United  King- 
dom as  circumstances  would  allow/^  Lord  Dur- 
ham wrote  that  it  was  not  "possible  to  secure 
harmony  in  any  other  way  than  by  administering 
the  government  on  those  principles  which  have 
been  found  perfectly  efficacious  in  Great  Britain," 
and  while  he  would  not  "impair  a  single  preroga- 
tive of  the  Crown,"  and  he  believed  "that  the 
interests  of  the  people  of  these  provinces  require 
the  protection  of  prerogatives  which  have  not 
hitherto  been  exercised" — still  "the  Crown  must 
submit  to  the  necessary  consequences  of  repre- 
sentative institutions." 

The  population  of  Lower  Canada  was  at  this 
time  about  630,000,  while  that  of  Upper  Canada 
was  about  470,000 — the  Lower  Canadians  felt 
that  it  was  an  injustice  that  they  should  have  no 
more  members  than  the  Upper  Province — those 
in  the  Upper  Province  thought  that  three  English- 
speaking  Canadians  were  worth  at  least  four 
French-Canadians, — this  grievance,  as  we  shall 
see,  changed  face  before  many  years.  The  French- 
Canadians  also  felt  aggrieved  by  the  proscription 
of  their  language.  Their  complaints  were  not 
unnatural — the  provisions  complained  of  arose 
from  Lord  Durham's  view  that  it  was  necessary 
to  unite  the  two   races   on   such  terms   that  the 


26  CONSTITUTION  OF  CANADA 

English  would  be  given  the  domination.  He  said, 
"without  effecting  the  change  so  rapidly  or  so 
roughly  as  to  shock  the  feelings  or  to  trample  on 
the  welfare  of  the  existing  generation,  it  must 
henceforth  be  the  first  and  steady  purpose  of  the 
British  Government  to  establish  an  English  popu- 
lation, with  English  law  and  language  in  this 
Province,  and  to  trust  its  government  to  none  but 
a  decidedly  English  legislature." 

This  object  wholly  failed  of  fulfilment, — and  I 
venture  to  think  it  will  continue  to  fail  of  fulfil- 
ment, so  long  as  the  French-Canadian  mother 
continues  to  do  her  part  as  she  has  been  doing 
it — the  French  remained  French  and  their  in- 
fluence in  Parliament  steadily  increased.  They 
had  been  ostracised  politically  by  the  first  Gov- 
ernor, and  the  acceptance  by  his  successor  of  a 
Government  with  a  French-Canadian  at  its  head, 
struck  the  High  Tory  Duke  of  Wellington  with 
horror  and  dismay.  The  first  Legislative  Council 
of  twenty-four  members  contained  eight  French- 
Canadians. 

At  first  the  government  was  conducted  on  the 
principle  that  the  French  were  inferior;  but  this 
idea  speedily  vanished,  and  before  long,  prominent 
French-Canadians  became  not  only  members,  but 
in  large  measure  masters  of  the  Administration. 

The    Home    administration    had    retained    the 


HISTORICAL  27 

power  of  veto  upon  all  acts  of  the  Legislature  by 
means  of  the  Governor,  an  Imperial  Officer ;  and 
it  seemed  as  time  went  by  almost  impossible  for 
those  in  the  Colonial  Office  (or  indeed  in  any  of 
the  offices  of  the  Imperial  Government)  to  learn 
that  Parliamentary  Government  meant  the  same 
thing  in  Canada  as  in  England,  and  that  Cana- 
dians, French  or  English,  were  much  more  capable 
of  understanding  and  deciding  what  was  proper 
for  their  country  than  any  Islander  in  London 
could  be.^^ 

The  Governors  in  Canada  came  in  conflict  from 
time  to  time  with  the  Legislatures  who  claimed 
all  the  rights  of  the  British  Parliament :  but  on 
the  whole,  the  new  Constitution  worked  well;  and 
at  length  the  responsibility  of  the  administration 
to  the  people's  representatives  was  fully  admitted. 

The  two  parts  of  the  Province  were  of  such 
different  laws,  manners,  etc.,  that  much  of  the 
legislation  was  for  one  only  of  the  Canadas ;  and 
gradually  the  working  theory  arose  that  a  min- 
istry must  command  a  majority  of  the  members 
from  each  part.  This  produced  endless  difficul- 
ties ;  and  it  was  the  cause  of  much  intrigue  and 
"log-rolling." 

The  Upper  Province  rapidly  increased  in  wealth 
and  population,  overtaking  and  passing  the  Lower 
Province  by  1850;  and  many  of  its  public  men 


28  CONSTITUTION  OF  CANADA 

complained  of  the  provision,  formerly  favourable 
to  their  section,  that  each  part  should  have  the 
same  number  of  representatives.  Representation 
by  Population — "Rep.  by  Pop.,"  as  it  was  gen- 
erally called — became  a  watchword  of  a  whole 
political  party^**  in  Upper  Canada. 

When  the  Ashburton- Webster  Treaty  was  made 
in  1842 — the  "Ashburton  Capitulation,"  as  Lord 
Palmerston  called  it — and  Maine  was  thrust  like 
a  wedge  between  Canada  and  the  British  colony 
to  the  east  (without  consulting  either  colony), 
the  attention  of  all  British  Americans  was  called 
to  the  necessity  of  a  highway  between  the  divided 
colonies ;  this  plan  gave  way  to  a  scheme  for  a 
railway,  an  "Intercolonial"  railway;  and  in  1852 
the  Governments  of  Canada  and  New  Brunswick 
agreed  to  build  a  line  down  the  valley  of  the 
St.  John.  But  this  plan  passed  from  an  active 
stage  when  the  Colonial  Minister  at  Westminster 
refused  to  guarantee  the  cost.  From  th»t  time 
on,  however,  Canada,  New  Brunswick  and  Nova 
Scotia  never  wholly  lost  sight  of  the  project;  and 
various  attempts  were  made  to  revive  it. 

These  and  other  matters  influenced  statesmen 
of  all  parties  and  provinces  to  seek  a  remedy :  and 
the  plan  of  Lord  Durham  outlined  in  his  Report, 
for  the  Confederation  of  all  the  British  American 
Colonies  was  from  time  to  time  made  the  subject 


HISTORICAL  29 

of  discussion.  He  was  the  first  man  in  a  respon- 
sible position  to  recommend  the  union  of  all  the 
British  American  Colonies. ^^  As  early  as  1858  a 
responsible  Minister  of  the  Crown  in  Canada,  Mr. 
(afterwards  Sir)  Alexander  T.  Gait,  openly  advo- 
cated it  and  moved  for  the  appointment  of  a 
committee  to  ascertain  the  views  of  the  people  of 
the  Lower  Provinces  and  of  the  Imperial  Govern- 
ment. In  1861  Mr.  (afterwards  Sir)  John  A. 
Macdonald  (first  Prime  Minister  of  the  Dominion 
of  Canada),  while  opposing  the  principle  of  "Rep. 
by  Pop.,"  said  that  the  only  feasible  scheme  as  a 
remedy  for  the  evils  complained  of  was  a  Confed- 
eration of  all  the  Provinces.  And  at  length  in 
1864  he  effected  an  agreement  and  a  coalition 
with  his  strongest  political  foe,  Mr.  George 
Brown,^^  to  secure  this  object. 

Before  this  time  the  Colonial  Secretary  at 
Westminster  had  assured  the  Governor-General 
that  any  union,  partial  or  complete,  suggested 
with  the  concurrence  of  the  Colonies  themselves, 
would  be  most  favourably  considered  by  the  Home 
Government. 

The  Lower  Provinces  had  tired  of  the  fruitless 
negotiations  with  Canada,  and  had  in  the  session 
of  their  respective  Parliaments  in  1864  authorised 
the  appointment  of  delegates  to  discuss  and  if 
possible  to  bring  about  a  union  of  the  Maritime 


30  CONSTITUTION  OF  CANADA 

Provinces,  i.e.,  New  Brunswick,  Nova  Scotia  and 
Prince  Edward  Island.  A  meeting  of  these  dele- 
gates had  been  set  for  September  1,  1864.  The 
Canadians  felt  that  it  would  be  advisable  to  take 
advantage  of  this  opportunity ;  and  accordingly 
eight  members  of  the  Coalition  Government  of 
both  sides  of  politics,  went  to  Charlottetown, 
Prince  Edward  Island,  met  the  Conference  and 
were  asked  to  and  did  express  their  views.  The 
Maritime  delegates  are  understood  to  have  come 
to  the  conclusion  that  a  Maritime  Union  was  im- 
practicable, but  that  a  union  on  the  larger  basis 
might  be  effected.  In  order  that  the  feasibility 
of  such  a  Confederation  might  be  discussed  and 
considered  from  every  point  of  view,  the  Charlotte- 
town  Conference  was  adjourned;  and  it  was 
agreed  to  hold  another  Conference  at  Quebec,  to 
be  attended  by  delegates  from  all  the  provinces 
interested.  This  Conference  met  in  the  Parlia- 
ment Buildings,  Quebec,  October  10,  1864,  and 
was  attended  by  delegates  from  Canada,  New 
Brunswick,  Nova  Scotia,  Prince  Edward  Island 
and  Newfoundland;  resolutions  were  adopted 
which  formed  the  basis  of  the  British  North 
America  Act  subsequently  passed,  which  estab- 
lished the  Dominion  of  Canada. 

Beyond  any  question,  the  American  Civil  War 
and  the  "Trent  affair"  of  1861  had  much  to  do 


HISTORICAL  31 

with  hastening  the  movement  for  Union.  So  also 
had  the  anticipated  "revocation"  of  the  Reci- 
procity Treaty ;  and  when  this  Treaty  was  in  fact 
abrogated  in  1866,  its  abrogation  had  no  little 
effect  in  hastening  matters  to  a  conclusion — but 
into  that  I  cannot  enter  here ;  it  is  too  complicated 
and  extensive  a  question. 

The  Imperial  Government  expressed  their  ap- 
proval of  the  proposed  scheme  as  soon  as  it  was 
brought  to  their  notice  (with  two  exceptions  of 
no  moment  for  our  present  discussion). 

Both  Houses  of  Parliament  in  Canada  approved 
of  the  scheme  in  1865  by  large  majorities;  the 
New  Brunswick  Government,  however,  met  with 
defeat  at  the  polls  when  they  ventured  on  an 
appeal  to  the  electorate  without  bringing  the 
question  before  the  Legislature.  The  Nova  Scotia 
House  of  Assembly  in  1866  gave  their  adherence 
to  the  project  by  a  majority  vote  of  31  to  19; 
and  in  the  same  year  the  former  Government  in 
New  Brunswick  were  returned  by  a  large  majority 
at  a  new  election ;  this  new  election  had  been 
ordered  by  the  Governor  through  what  many 
would  consider  a  piece  of  sharp  practice — the 
whole  story  certainly  makes  amusing  reading. 
The  House  in  that  Colony  then  approved  the  plan 
a  large  majority. 

In  1865,  and  again  in  1866,  Prince  Edward 


32  CONSTITUTION  OF  CANADA 

Island  by  her  Legislature  in  emphatic  terms 
refused  to  enter  into  the  proposed  Union. 
Canada,  New  Brunswick  and  Nova  Scotia  sent 
delegates  to  England  for  the  necessary  legislation 
by  the  Imperial  Parliament.  Prince  Edward 
Island  was  again  invited  to  join,  and  its  repre- 
sentative, the  Premier,  then  in  London,  was 
favourably  impressed  with  the  terms  offered;  but 
on  his  return  home,  his  Government  was  defeated. 
Newfoundland  declined  to  come  into  the  Union. 

Accordingly  the  British  North  America  Act^^ 
was  passed  by  the  Parliament  at  Westminster  in 
1867,  creating  the  Dominion  of  Canada,  com- 
posed of  four  Provinces,  Ontario  (formerly  Upper 
Canada),  Quebec  (formerly  Lower  Canada), 
Nova  Scotia  and  New  Brunswick.  On  July  1, 
1867,  was  the  first  "Dominion  Day"  celebrated. 

It  will  now  be  proper  to  go  back  and  say  a 
word  on  the  Constitutional  History  of  the  two 
Maritime  Provinces. 

The  French  had  been  strangely  blind  to  the 
importance  of  the  seaboard  of  North  America: 
and  while  they  had  some  settlements  on  the  Island 
of  Cape  Breton,  they  left  the  Atlantic  shore  of 
Nova  Scotia  in  great  measure  to  the  English.  A 
considerable  number  of  Acadians  were  settled  in 
the  Annapolis  Valley  near  Port  Royal,  and  some 
in  other  parts  of  Nova  Scotia :  and  in  these  settle- 


HISTORICAL  33 

ments  the  feudal  system  was  in  force  as  in  Quebec, 
but  this  was  not  the  case  where  the  English  had 
settled. 

We  may  term  the  period  of  French  rule  the 
first  period  also  in  Nova  Scotia's  Constitutional 
History.  There  was  no  clean-cut  period  of  mili- 
tary rule  as  in  Quebec  and  we  may  without 
violence  to  language  consider  the  second  period 
as  beginning  with  the  Commission  from  King 
George  I  to  Colonel  Richard  Phillips,  dated  July 
9,  1719.  For  while  there  was  much  of  Nova 
Scotia  still  French,  the  regular  rule  of  the  English 
was  established  at  Annapolis  Royal  under  that 
instrument. 

By  this  Commission,  Colonel  Phillips  as  Gov- 
ernor was  empowered  to  appoint  fitting  and 
discreet  persons  not  exceeding  twelve  in  number 
to  form  a  Council  for  the  Province,  and  in  1720 
on  his  arrival,  via  Boston,  at  Annapolis,  he  ap- 
pointed ten  Councillors,  all  but  one  from  those 
officially  connected  with  the  garrison.  An 
Assembly  was  suggested  by  Governor  Armstrong 
as  early  as  1731  and  again  the  following  year; 
and  at  length  in  1748  Governor  Shirley  prepared 
and  submitted  a  plan  for  the  government  of  the 
Colony.  This  plan  which  contemplated  a  Charter 
based  upon  that  of  Massachusetts  failed  to  be 
accepted.     After  the  termination  in  1748  of  the 


34  CONSTITUTION  OF  CANADA 

war  between  Britain  and  France,  Halifax  was 
founded  (in  1749)  and  became  the  seat  of 
Government;  and  while  for  some  years  the 
Governor  ruled  with  the  assistance  of  a  Council 
alone,  his  instructions  contemplated  also  an 
Assembly  elected  by  the  people.  Such  an 
Assembly  met  for  the  first  time  in  1758  with 
nineteen  members — ushering  in  the  third  period. 

There  were  the  usual  quarrels  between  the 
Houses  over  privilege,  etc.  Roman  Catholics 
were  admitted  in  1781  and  as  early  as  1790  there 
were  disputes  over  money  bills.  As  elsewhere  the 
popular  House  "daringly  opposed  the  King's 
Government,"  and  shortly  after  the  opening  of 
the  century  there  seems  to  have  been  a  kind  of 
"Family  Compact"  in  the  Council.  As  time  went 
by,  the  demand  for  Responsible  Government  which 
had  been  at  first  somewhat  inarticulate  became 
more  and  more  insistent. 

A  real  "Cabinet"  makes  its  appearance  by 
1842  and  by  1848  is  thoroughly  established 
without  change  of  the  form  of  government  by 
legislation:  and  thus  the  third  period  with  an 
appointive  Council  and  an  elected  Assembly  but 
with  the  principle  of  responsibility  of  the  Admin- 
istration to  the  lower  House  continued  till  Federa- 
tion in  1867  under  the   British  North  America 


HISTORICAL      .  36 

Act  of  that  year — when  she  began  her  fourth 
period  (fiat  aeterna). 

Nova  Scotia  or  Acadie  was  composed  originally 
of  what  is  now  the  peninsular  part  of  Nova 
Scotia,  New  Brunswick,  part  of  Quebec  south  of 
St.  Lawrence  and  part  of  Maine  down  to  the 
Kennebec.  Cape  Breton  was  annexed  to  Nova 
Scotia  in  1820  having  theretofore  been  a  separate 
Colony;  and  New  Brunswick  had  been  cut  off  in 
1784.  With  New  Brunswick  went  the  portion 
of  Quebec  and  Maine.  Members  from  part  of 
what  became  New  Brunswick  had,  however,  sat 
in  the  Nova  Scotia  House  of  Assembly  as  early  as 
1765. 

At  the  time  of  its  separation  from  Nova  Scotia, 
New  Brunswick  had  only  about  16,000  inhabit- 
ants :  but  a  separate  Government  was  formed,  the 
Governor  (Thomas  Carleton,  brother  of  Sir  Guy 
Carleton,  Lord  Dorchester,  but  a  different  kind 
of  man),  a  Council  of  nine  members  and  in  1786 
a  Legislative  Assembly. 

In  New  Brunswick  the  same  kind  of  struggles 
took  place  as  in  Canada  and  Nova  Scotia:  the 
particular  incidents  were  somewhat  different  but 
the  contending  principles  the  same.  By  the  time 
of  Confederation,  however.  New  Brunswick  was  in 
the  same  happy  condition  as  its  sister  colonies. 

New     Brunswick     accordingly     had     her     five 


36  CONSTITUTION  OF  CANADA 

periods — the  first  until  1719  under  French  rule, 
the  second  1719  to  1758  under  Governor  and 
Council,  the  third  from  1758  to  1784  in  connec- 
tion with  and  part  of  Nova  Scotia,  the  fourth 
from  1784  to  1867  as  a  separate  colony,  and  the 
fifth  as  a  Province  of  Canada. 

Although  Prince  Edward  Island  refused  to 
become  part  of  the  Dominion  in  1867,  Canada 
did  not  despair:  in  1869  another  offer  was  made 
to  Prince  Edward  Island,  but  this  was  also 
refused.  Negotiations,  however,  renewed  in  1872 
were  more  successful, — they  had  got  into  financial 
difficulties  in  that  little  Province, — and  the  Island 
joined  the  Dominion  as  a  Province,  July  1, 
1873,  the  formal  Order-in-Council  being  dated  at 
Windsor,  June  26,  1873. 

Prince  Edward  Island  was  originally  called 
Isle  of  St.  John.  It  was  apparently  discovered 
by  Cabot  but  was  claimed  by  the  French,  who 
established  there  a  few  fishing  stations.  After  the 
Treaty  of  Utrecht  many  Acadians  made  their 
homes  in  the  Island  and  brought  their  laws  and 
customs  with  them,  but  the  British  took  posses- 
sion in  1758  on  the  capture  of  Louisburg;  in  1763 
the  Island  was  formally  ceded  to  Britain  and  in 
the  same  year  placed  under  the  government  of 
Nova  Scotia. 

Lord    Egmont    tried    to    get    a    grant    of    the 


HISTORICAL  37 

Island  but  failed,  and  in  1767  it  was  practically 
all  granted  to  a  number  of  persons  on  condition 
of  their  bringing  in  settlers,  etc.  In  1769  it 
was  made  a  separate  Colony  and  a  Governor 
appointed,  arriving  in  1770.  He  was  commanded 
in  his  instructions  to  call  a  "lower  house  of 
representatives,"  and  in  1773  the  first  Assembly 
met.  Before  this  from  1770  the  Governor  had 
acted  by  and  with  the  consent  of  a  Council  as  in 
the  other  Colonies.  The  main  difficulties  in  this 
Island  arose  from  the  land  having  been  granted 
to  a  few  proprietors ;  and  these  difficulties  were 
rather  economical  than  constitutional.  There 
was,  however,  not  a  little  of  the  same  want  of 
harmony  between  the  elected  and  the  appointed 
with  the  Governor  and  the  Home  authorities. 
And  well  before  1867  Prince  Edward  Island  (she 
received  this  name  in  1799)  was  abreast  of  her 
sister  colonies  in  Responsible  Government."* 

In  the  meantime  the  Dominion  had  in  1870 
bought  out  the  Hudson  Bay  Company;  and  out 
of  part  of  the  territory  so  acquired  was  formed 
the  Province  of  Manitoba  by  Act  of  the  Dominion 
Parliament. ^^ 

In  the  far  West  was  the  Island  of  Vancouver, 
made  a  separate  Colony  in  1859,  but  reunited  with 
the  mainland  in  the  Colony  of  British  Columbia 
in  1866   (the  mainland  of  British   Columbia   re- 


6 


^  HQ  <>  Q 


38  CONSTITUTION  OF  CANADA 

ceived  Representative  Government  in  1858).  In 
1870  an  arrangement  was  entered  into  that  this 
Colony  should  also  join  the  Dominion  upon 
condition  of  the  construction  by  Canada  of  the 
Canadian  Pacific  Railway.  The  union  was  ef- 
fected July  30,  1871,  by  an  Order-in-Council  at 
Windsor,  May  16,  1871. 

More'  recently  two  more  Provinces  have  been 
formed  out  of  part  of  the  enormous  territory  of 
our  Great  West,  viz..  Alberta  and  Saskatchewan, 
constituted  by  the  Acts  of  the  Dominion  Parlia- 
ment,'*' coming  into  force  September  1,  1905. 

The  remainder  of  the  Continental  British  ter- 
ritory is  divided  into  the  Yukon  and  Northwest 
Territories  under  Territorial  administration,  and 
Labrador,  this  last  under  the  care  of  New- 
foundland. 

Newfoundland  had  been  officially  represented 
at  the  Quebec  Conference,  and  the  resolutions  of 
the  delegates  to  the  Quebec  Conference  contained 
a  provision  that  she  might  enter  the  proposed 
Union,  and  they  set  out  the  terms  upon  which  she 
might  do  so.  The  British  North  America  Act 
made  provision  for  such  a  proceeding;  and  there 
were  negotiations  of  a  more  or  less  informal  kind 
looking  to  her  coming  into  the  Dominion.  In  1868 
terms  of  Union  were  arranged  with  the  Govern- 
ment of  the  Island,  but  that  Government  suffered 


HISTORICAL  39 

defeat  at  the  polls  and  the  arrangement  was  not 
carried  out.  At  least  once  since  that  time,  repre- 
sentatives from  the  "Ancient  Colony"  have  come 
to  Ottawa  with  a  view  to  their  country  uniting 
her  fortunes  with  those  of  the  Dominion;  but  the 
negotiations  proved  abortive;  and  Newfoundland 
still  stands  alone. 

The  Dominion  of  Canada  has  thus  her  nine 
provinces,  all  of  which  have  (speaking  generally) 
the  same  legislative  rights  and  powers.^^ 


NOTES  TO  LECTURE  I 

1 14  George  III,  c.  83. 

2  The  quotations  following  are  from  an  address  on  The 
Constitutional  History  of  Canada  by  myself  delivered 
before  the  Canadian  Club  of  Toronto,  November  6,  1911. 

3 1  say  "speaking  generally,"  but  where  laymen  like 
soldiers  are  called  upon  to  decide  cases  at  law,  they  are  apt 
to  go  by  the  light  of  nature  or  by  what  they  have  under- 
stood to  be  law.  In  some  instances  the  Commanders  were 
known,  and  in  more  suspected,  to  have  decided  according 
to  their  own  view  of  right  or  the  law  to  which  they  had 
been  accustomed  (as  they  understood  it)  rather  than  the 
law  and  customs  of  the  conquered  people.  That  is  to  be 
expected  in  every  conquered  country. 

The  terms  of  surrender  are  set  out  in  Kingsford's 
History  of  Canada,  Vol.  IV,  pp.  400  sqq. 

4  The  fuU  text  of  this  Proclamation  wiU  be  found  in 
Vol.  Ill  of  the  Report  of  the  Canadian  Archives,  1907, 
"Documents  relating  to  the  Constitutional  History  of 
Canada,  1759-1791,"  by  Drs.  Adam  Shortt  and  Arthur  G. 
Doughty,  pp.  119  sqq.  (English  edition).  All  but  the 
description  of  the  three  Provinces  of  East  Florida,  West 
Florida  and  Grenada  is  given  in  Kingsford's  History  of 
Canada,  Vol.  V,  pp.  142-145. 

5  "The  Government  of  Quebec  bounded  on  the  Labrador 
Coast  by  the  River  St.  John,  and  from  thence  by  a  line 
drawn  from  the  head  of  that  River  through  the  lake  St. 
John  to  the  South  end  of  the  Lake  Nipissim;  from  thence 
the  Said  Line  crossing  the  River  St.  Lawrence  and  the 
Lake  Champlain  in  45  degrees  of  North  Latitude,  passes 
along  the  High  Lands  which  divide  the  Rivers  which  empty 
themselves  into  the  said  River  St.  Lawrence  from  those 
which  fall  into  the  Sea;  and  also  along  the  North  Coast  of 


NOTES  TO  LECTURE  I  41 

the  Baye  des  Chaleurs  and  the  Coast  of  the  Gulph  of  St. 
Lawrence  by  the  West  End  of  the  Island  of  Anticosti, 
terminates  at  the  aforesaid  River  St.  John." 

The  terminology  "the  Highlands  which  divide  those 
rivers  that  empty  themselves  into  the  river  St.  Lawrence 
from  those  which  fall  into  the  Atlantic  Ocean"  is  used  to 
express  one  of  the  boundary  lines  between  the  territory 
of  the  United  States  and  that  of  Britain  in  the  Definitive 
Treaty  of  Peace  concluded  September  3,  1783,  Article  II 
following  No.  II  of  the  Provisional  Articles  concluded 
November  30,  1782.  "Treaties  and  Conventions  concluded 
between  the  United  States  of  America  and  other  Powers 
since  July  4,  1776."  (Washington,  Government  Printing 
Office,  1889,  pp.  370,  371,  376.) 

As  is  well  known  there  arose  much  difficulty  in  fixing 
this  line.  In  1803  a  Commission  to  settle  it  was  agreed  to 
by  Lord  Hawkesbury  (afterwards  Earl  of  Liverpool)  and 
Rufus  King,  the  American  Minister;  but  this  the  Senate 
of  the  United  States  refused  to  ratify.  In  the  negotiations 
at  Ghent  in  1814,  the  British  Commissioners  endeavoured 
to  have  the  line  revised;  but  the  American  Commissioners 
declined,  and  it  was  agreed  by  Article  V  of  the  Treaty  of 
Ghent  ("Treaties,"  etc.,  p.  402)  to  leave  the  dispute  to  two 
Commissioners,  one  on  each  side,  named  by  the  King  and 
the  President  respectively.  If  the  Commissioners  could  not 
agree  they  were  to  report  to  their  Governments  and  the 
matter  was  to  be  referred  "to  some  friendly  sovereign  or 
State."  The  King  named  Thomas  Barclay  of  Annapolis, 
Nova  Scotia,  a  pupil  of  Jay's,  who,  born  in  New  York  State, 
had  fought  on  the  Loyalist  side  during  the  Revolution  and 
attained  the  rank  of  Colonel.  He  afterwards  practised  law 
in  Nova  Scotia,  and  became  a  member  and  Speaker  of  the 
Legislative  Assembly;  he  was  also  for  a  time  British  Consul 
at  New  York:  the  American  Commissioner  was  Cornelius 
P.  Van  Ness,  subsequently  Chief  Justice  and  Governor  of 
Vermont.    They  were  unable  to  agree  and  so  reported.    It 


42  CONSTITUTION  OF  CANADA 

therefore  became  proper  to  appeal  to  "some  friendly  sover- 
eign or  State."  A  convention  was  entered  into  September 
29,  1827,  under  which  WiUiam,  King  of  the  Netherlands, 
was  chosen  arbitrator.  January  10,  1831,  he  made  an 
award;  the  American  Minister  promptly  protested  against 
it,  and  the  British  Government  did  not  insist.  The  line 
was  afterwards  settled  by  diplomatic  negotiation  by  Ash- 
burton  and  Webster,  and  is  set  out  in  the  Ashburton 
Treaty  of  August  9,  1842. 

6  While  in  Canada  everyone  charged  with  a  serious 
criminal  offence  has  a  right  to  be  tried  by  a  jury  if  he  so 
desires,  we  in  Ontario  have  got  rid  of  trial  by  jury  in  the 
vast  majority  of  civil  cases.  In  the  Supreme  Court  not  25 
per  cent  of  civil  cases  are  tried  by  a  jury  and  in  the  inferior 
Courts  a  still  smaller  percentage  are  so  tried.  Except  in 
a  small  class  of  cases,  the  trial  Judge  has  the  power  con- 
stantly exercised  of  striking  out  a  jury  notice  even  if  one 
party  or  the  other  desires  trial  by  jury.  There  is  no  feeling 
against  the  practice,  and  we  are  about  in  the  state  of  the 
French-Canadians  of  a  century  and  a  half  ago  in  our 
estimate  of  the  comparative  value  of  Judge  and  jury  as  a 
trial  tribunal,  and  expense  is  still  a  matter  of  consideration 
to  us.  As  I  said  to  the  Illinois  Bar  Association  in  an 
address  delivered  at  Chicago  May  20,  1914: 

"In  more  than  thirty  years'  experience  I  have  known  of 
only  two  appeals  against  the  action  of  a  trial  judge  in 
striking  out  a  jury  notice — both  unsuccessful. 

"The  saving  of  time — and  wind — :is  enormous.  The 
opening  and  closing  speeches  of  counsel  to  the  jury  and  the 
charge  of  the  judge  are  done  away  with;  in  argument  there 
are  very  few  judges  who  care  to  be  addressed  like  a  public 
meeting  and  quite  as  few  who  are  influenced  by  mere 
oratory — all  indeed  must  ex  offlcio  be  patient  with  the 
tedious  and  suffer  fools  gladly.  Vehement  assertion,  gross 
personal  attacks  on  witnesses  or  parties,  invective,  appeal 
to  the  lower  part  of  our  nature,  are  all  at  a  discount;  and 


NOTES  TO  LECTURE  I  43 

in  most  cases  justice  is  better  attained,  rights  according 
to  law  are  better  ensured.  Moreover  during  the  course 
of  a  trial  a  very  great  deal  of  time  is  not  uncommonly 
wasted  in  petty  objections  to  evidence,  in  dwelling  upon 
minor  and  almost  irrelevant  matters  which  may  influence 
the  jury,  wearisome  cross-examination  and  reiteration,  etc., 
all  of  which  are  minimised  before  a  judge. 

"But  it  is  never  to  be  forgotten  that  the  courts  belong 
to  the  people,  and  the  wishes — even  the  prejudices — of  the 
people  must  be  borne  in  mind.  If  for  any  reason  the  body 
of  the  people  were  to  come  to  the  opinion  that  a  judge 
trial  was  not  a  just  trial,  justice  would  not  be  satisfactorily 
administered  if  that  form  of  trial  were  adopted." 

Of  course  it  has  often  been  and  occasionally  still  is  said 
that  trial  by  jury  is  the  Palladium  of  our  liberties,  but  I 
venture  to  think  that  if  our  liberties  get  in  so  bad  a  way 
that  it  requires  such  a  Palladium  to  save  them,  jury  trial 
will  be  quite  as  ineffective  as  the  original  Palladium  was 
to  save  Troy. 

^  The  full  text  of  this  important  Statute  will  be  found 
in  the  Report  of  the  Canadian  Archives  already  cited,  pp. 
401  sqq.  Petitions  of  French  and  of  English  subjects,  etc., 
will  be  found  pp.  354  sqq.  Petitions  for  the  repeal  of  the 
Act,  pp.  414  sqq. 

8  "Ancient"  subjects  from  the  old  land  or  the  American 
Colonies  to  distinguish  them  from  the  "new"  subjects,  the 
French-Canadians.  Zachary  Macaulay,  the  father  of  the 
celebrated  Thomas  Babington,  Lord  Macaulay,  "was  one 
of  the  petitioners. 

9  Those  who  have  studied  botany  may  have  noticed 
certain  plants  described  as  "Canadensis,"  "Canadense," 
which  are  not  found  in  what  we  now  call  Canada  at  all. 
This  is  explained  by  the  fact  that  when  the  botanical  termi- 
nology was  fixed,  Canada  included  practically  all  the  terri- 
tory bordering  on  the  Mississippi  down  as  far  as  Louisiana. 

10  The  fact  is  that  it  was  not  thought  safe  to  trust  power 


44  CONSTITUTION  OF  CANADA 

to  a  Roman  Catholic  Legislature.  Religious  feud  dies  hard; 
the  A.  P.  A.  is  still  alive  even  in  this  land  of  tolerance  and 
freedom. 

11  An  English  translation  of  this  address  (the  original 
is  in  the  Library  of  Congress)  will  be  found  in  Kingsford's 
History  of  Canada,  Vol.  V,  pp.  262  sqq.  The  chief  grounds 
of  complaint  which  Congress  thinks  the  "Friends  and 
Fellow  Subjects"  in  Canada  have  are  having  (1)  no  share 
in  the  government,  (2)  no  trial  by  jury,  (3)  no  writ  of 
Habeas  Corpus,  (4)  no  tenure  of  land  by  easy  rents,  (5)  no 
freedom  of  the  press. 

In  the  Address  by  the  Congress  to  the  People  of  Eng- 
land dated  from  Philadelphia,  September  5,  1774,  the 
Quebec  Act  is  said  to  be  "hostile  to  British  America." 
The  Address  goes  on:  "We  cannot  help  deploring  the 
unhappy  condition  to  which  it  has  reduced  the  many  Eng- 
lish settlers.  .  .  .  They  are  now  the  subjects  of  an  arbi- 
trary Government,  deprived  of  trial  by  jury  and  when 
imprisoned  cannot  claim  the  benefit  of  the  habeas  corpus 
act,  that  great  bulwark  and  palladium  of  English  liberty; 
nor  can  we  suppress  our  astonishment  that  a  British  Par- 
liament should  ever  consent  to  establish  in  that  Country 
(Canada)  a  religion  that  has  deluged  your  island  in  blood, 
and  dispersed  impiety,  bigotry,  persecution,  murder  and 
rebellion  through  every  part  of  the  world."  Kingsford's 
History  of  Canada,  Vol.  V,  pp.  246,  247,  note. 

It  is  a  fact  not  noticed  by  many  people  that  the  nation 
which  boasts,  and  rightly  boasts,  that  it  has  no  established 
church,  but  that  all  creeds  are  equally  recognised  in  its 
dominions,  began  its  career  by  protesting  against  allow- 
ing the  French-Canadians  to  use  their  own  religion  in 
Quebec,  that  "blood-thirsty,  idolatrous  and  hypocritical 
creed." 

12  Except  the  law  of  real  estate  which  in  countries  under 
the  Common  Law  of  England  is  a  "rubbish  heap  which  has 
been  accumulating  for  hundreds  of  years  and  .  .  .  is  .  .  . 


NOTES  TO  LECTURE  I  45 

based  upon  feudal  doctrines  which  no  one  (except  pro- 
fessors in  law  schools)  understands,"  law  is  generally  based 
on  common  sense  and  justice — and  most  of  the  laws  of  all 
civilised  countries  are  very  close  to  each  other. 

13  The  Quebec  Act,  14  George  III,  c.  83,  provided  "that 
no  Person,  professing  the  Religion  of  the  Church  of  Rome 
and  residing  in  the  said  Province  shall  be  obliged  to  take 
the  oath  required  by  the  .  .  .  Statute  passed  in  the  First 
Year  of  the  Reign  of  Queen  Elizabeth  (i.e.,  the  Oath  of 
Supremacy)  .  .  .  but  that  every  such  person  .  .  .  shall  be 
obliged  ...  to  take  and  subscribe"  an  oath  of  which  the 
form  is  given  not  objectionable  to  Roman  Catholics.  It 
was  in  Canada  that  first  in  British  territory  since  the 
Reformation  Roman  Catholics  were  allowed  to  sit  as 
legislators. 

14  The  main  lines  of  immigration  were  toward  Cornwall 
and  Kingston  on  the  St.  Lawrence,  Niagara  across  the 
Niagara  River  and  to  the  left  bank  of  the  River  Detroit. 
Of  course  a  great  many  came  to  the  southern  part  of  what 
is  now  the  Province  of  Quebec,  particularly  to  St.  John 
and  the  "Eastern  Townships." 

15  (1791)  31  George  III,  c.  31.  See  for  the  full  text  the 
Archives  Report  already  mentioned,  pp.  694  sqq. 

16  This  is  not  strictly  correct — speaking  with  strict  legal 
accuracy  the  division  of  the  Province  of  Quebec  into  two 
provinces,  i.e..  Upper  Canada  and  Lower  Canada,  was 
effected  by  the  Royal  Prerogative.  The  message  sent  to 
Parliament  expressing  the  Royal  intention  is  to  be  found 
copied  in  the  Ontario  Archives  Reports  for  1906,  p.  158. 
After  the  passing  of  the  Quebec  Act,  an  Order  in  Council 
was  passed  August  34,  1791  (Ontario  Archives  Reports  for 
1906,  pp.  158  sqq.),  dividing  the  Province  of  Quebec  into 
two  provinces  and  under  the  provisions  of  section  48  of  the 
Act  directing  a  Royal  warrant  to  authorise  "the  Governor 
or  Lieutenant-Governor  of  the  Province  of  Quebec  or  the 
person    administering    the    government    there,    to    fix    and 


46  CONSTITUTION  OF  CANADA 

declare  such  day  as  they  shall  judge  most  advisable  for  the 
commencement"  of  the  effect  of  the  legislation  in  the  new 
provinces,  not  later  than  December  31,  1791.  Lord  Dor- 
chester  (Sir  Guy  Carleton)   was  appointed  September  12, 

1791,  Captain-General  and  Governor-in-Chief  of  both  prov- 
inces and  he  received  a  Royal  warrant  empowering  him  to 
fix  a  day  for  the  legislation  becoming  effective  in  the  new 
provinces  (see  Ontario  Archives  Reports  for  1906,  p.  168). 
In  the  absence  of  Dorchester,  General  Alured  Clarke, 
Lieutenant-Governor  of  the  Province  of  Quebec,  issued, 
November  18,  1791,  a  proclamation  fixing  Monday,  Decem- 
ber 26,  1791,  as  the  day  for  the  commencement  of  the  said 
legislature  (Ontario  Archives  Reports  for  1906,  pp.  169- 
171).  Accordingly,  technically  and  in  law,  the  new  province 
was  formed  by  Order-in-Council,  August  24,  1791,  but  there 
was  no  change  in  administration  until  December  26,  1791. 

17  There  was  a  very  curious  provision  in  the  Act  of  1791, 
which  might  have  proved  mischievous:  Section  6  authorised 
the  Crown  to  annex  to  any  hereditary  title  of  honour,  rank 
or  dignity  conferred  by  Letters  Patent  under  the  Great 
Seal  of  the  Province,  an  hereditary  right  of  being  sum- 
moned to  the  Legislative  Council.  This  right  was  never 
exercised  and  the  Canadas  fortunately  escaped  an  heredi- 
tary second  house  of  Parliament. 

18  When  the  first  Parliament  of  Upper  Canada  met  at 
Newark    (Niagara-on-the-Lake),    Monday,    September    17, 

1792,  His  Excellency  the  Lieutenant-Governor,  Colonel  John 
Graves  Simcoe,  in  the  Speech  from  the  Throne,  said  to  the 
members  of  the  Legislative  Council  and  Legislative 
Assembly  (or  House  of  Commons) : 

"I  have  summoned  you  together  under  the  authority  of 
an  Act  of  Parliament  of  Great  Britain  passed  in  the  last 
year  and  which  has  established  the  British  Constitution, 
and  also  the  forms  which  secure  and  maintain  it  in  this 
distant  country. 

"The    wisdom    and    beneficence    of    our    Most    Gracious 


NOTES  TO  LECTURE  I  47 

Sovereign  and  the  British  Parliament  have  been  eminently- 
proved,  not  only  in  the  imparting  to  us  the  same  form  of 
Government,  but  also  in  securing  the  benefit  of  the  many 
provisions  that  guard  this  memorable  Act;  so  that  the 
blessings  of  our  invaluable  constitution  thus  protected  and 
amplified  we  may  hope  will  be  extended  to  the  remotest 
posterity  .  .  ." 

Both  Houses  made  a  most  loyal  address  in  answer,  that 
of  the  Council  following  closely  the  wording  of  the  Speech 
from  the  Throne. 

In  his  Speech  from  the  Throne  closing  this  Session, 
Simcoe  said  that  the  Constitution  of  the  Province  was  "the 
very  image  and  transcript  of  that  of  Great  Britain." 

(The  Speech  from  the  Throne  and  the  Answers  will  be 
found  in  the  Seventh  Report  of  the  Bureau  of  Archives, 
Ontario,  1910,  pp.  1-3;  Sixth  Report  of  the  Bureau  of 
Archives,  Ontario,  pp.  2-3.  The  closing  speech  is  on  pages 
11  and  18  respectively.) 

From  the  very  beginning  of  the  two  Provinces  of 
Canada  it  was  contended  that  the  Constitution  was  the 
"very  image  and  transcript"  of  that  of  Great  Britain,  and 
most  of  the  conflicts  between  Governors  and  Parliament, 
and  between  the  two  Houses  of  Parliament  arose  from  the 
contention  that  the  British  Constitution  was  not  followed 
in  the  government  of  the  Canadas. 

The  Union  Act  was  (1840)  3  &  4  Vic,  c.  35  (Imp.). 

19  The  intense  conservatism — I  am  not  using  "conserva- 
tism" in  the  political  sense — of  the  average  Home  Minister 
or  official  may  not  be  considered  strange  when  we  see  even 
Gibbon,  the  learned  historian,  using  such  language  as  this: 

"If  you  begin  to  improve  the  constitution  you  may  be 
driven  step  by  step  from  the  disfranchisement  of  Old 
Sarum  to  the  King  in  Newgate,  the  Lords  voted  useless, 
the  Bishops  abolished  and  a  House  of  Commons  sans 
culottes."  Old  Sarum  was,  you  remember,  a  field,  which 
had  sent  members  to  the  House  of  Commons  in  early  times 


48  CONSTITUTION  OF  CANADA 

when  it  was  a  city,  and  continued  to  do  so  when  there  were 
no  persons  living  there  at  all.  The  House  of  Lords  has, 
indeed,  been  in  our  own  day  at  length,  almost  voted  useless, 
and  as  for  the  House  of  Commons,  there  is  no  member 
there  now  in  knee  breeches,  they  are  all  found  with  long 
trousers,  and  so  are  "sans  culottes"  in  very  fact. 

Even  greater  men  (perhaps)  were  subject  to  the  same 
horrifying  fears,  for  we  may  notice  the  predictions  of 
Robert  Southey.  He  was  a  poet  and  a  man  of  great 
capacity.  They  were  collected  long  ago  by  Mr.  PhiUips 
of  The  Times.  In  1803  Southey  proclaimed  that  "the 
Protestant  Dissenters  wUl  die  away.  Destroy  the  test  and 
you  kUl  them."  But  it  was  the  overthrow  of  Monarchy 
which  was  always  in  his  view.  "The  more  I  see,  the  more 
I  read,  and  the  more  I  reflect,"  he  writes  in  1813,  "the  more 
reason  there  appears  to  me  to  fear  that  our  turn  of  revolu- 
tion is  hastening  on."  In  1815  he  writes:  "The  foundations 
of  Government  are  undermined.  The  props  may  last  during 
your  lifetime  and  mine,  but  I  cannot  conceal  from  myself 
a  conviction  that  at  no  very  distant  day  the  whole  fabric 
must  fall."  In  1816  he  writes:  "The  only  remedy  (if  even 
that  be  not  too  late)  is  to  check  the  press."  In  1820: 
"There  is  an  infernal  spirit  abroad,  and  crushed  it  must  be. 
The  question  is  whether  it  will  be  cut  short  in  its  course  or 
suffered  to  spend  itself  like  a  fever.  In  the  latter  case  we 
shall  go  on,  through  a  bloodier  revolution  than  that  of 
France  to  an  iron  military  Government."  In  1823:  "The 
repeal  of  the  Test  Act  will  be  demanded,  and  must  be 
granted.  The  Dissenters  will  get  into  the  corporations. 
(That  was  at  the  time  it  was  suggested  that  a  man  who 
did  not  happen  to  belong  to  the  Church  of  England  might 
possibly  not  be  a  bad  member  of  Parliament.  The  idea  that 
a  Baptist,  a  Unitarian,  or  an  Anything-arian,  should  be 
allowed  to  be  a  member  of  a  municipal  corporation,  was 
thought  to  be  a  terrible  thing  in  those  days.)  Church 
property    will    be    attacked    in    Parliament.      Reform    in 


NOTES  TO  LECTURE  I  49 

Parliament  will  be  carried;  and  then — FAREWELL,  A 
LONG  FAREWELL,  TO  ALL  OUR  GREATNESS." 
When  the  Catholic  Relief  Bill  passed,  he  prophesied  the 
results:  "The  Protestant  flag  will  be  struck,  the  enemy 
wUl  march  in  with  flying  colours,  the  Irish  Church  wiU  be 
despoiled,  the  Irish  Protestants  will  lose  heart,  and  great 
numbers  will  emigrate,  flying  while  they  can  from  the 
wrath  to  come."  In  1832  it  was  proposed  to  pass  the 
Reform  Bill — "The  direct  consequence  of  Parliamentary 
reform  must  be  a  new  disposal  of  Church  property,  and 
an  equitable  adjustment  with  the  fund-holders — terms  which 
in  both  cases  mean  spoliation."  He  was  disposed  to  pray 
that  "the  cholera  morbus  may  be  sent  us  as  a  lighter  plague 
than  that  which  we  have  chosen  for  ourselves."  The  King 
threatens  to  make  Peers!  This  also  was  suggested  but  the 
other  day.  "Nothing  then  remains  for  us  but  to  await  the 
course  of  revolution.  I  shall  not  live  to  see  what  sort  of 
edifice  will  be  constructed  out  of  the  ruins,  but  I  shall  go  to 
rest  in  the  sure  confidence  that  God  will  provide  as  is  best 
for  His  Church  and  people."  Later  on,  in  1838,  he  writes: 
"I  am  not  without  strong  apprehensions  that  before  this 
year  passes  away  London  will  have  its  Three  Days."  And 
so  forth,  and  so  forth.  Robert  Southey  had  not  a  keen 
sense  of  humour. 

20  The  "Clear  Grit,"  Liberal  or  Reform  Party. 

21  This  had  been  recommended  long  before  by  Chief 
Justice  WiUiam  Smith  (a  graduate  of  Yale)  and  by  the 
well-known  agitator  Robert  Fleming  Gouray — no  doubt  also 
by  others. 

22  The  Honourable  George  Brown  of  the  Toronto  Globe 
was  the  leader  of  the  "Clear  Grit"  Party  and  second  to 
Macdonald  only  (if  to  him)  in  personal  influence. 

23  (1567)  30-31  Vic,  c.  3  (Imp.). 

24  An  incident  in  the  early  history  of  Prince  Edward 
Island  may  be  of  interest  to  Americans.  In  1776  two 
American    armed    vessels   had    been   sent    to    the    Gulf    to 


50  CONSTITUTION  OF  CANADA 

intercept  British  ordnance  and  store-ships.  They  landed 
at  Charlottetown,  without  opposition,  took  the  Adminis- 
trator and  some  of  his  civil  officers  prisoners  and  with  the 
Great  Seal  of  the  Island  and  such  valuable  booty  as  they 
could  lay  their  hands  on,  placed  them  on  board  ship  and 
took  them  to  New  England — the  American  has  always 
been  thorough  in  all  his  undertakings.  Washington  had  his 
headquarters  at  Cambridge:  when  the  exploit  was  reported 
to  him,  he  dismissed  the  principal  officers,  saying  that  they 
had  left  undone  what  they  were  sent  to  do  and  done  what 
they  should  not  have  done.  He  did  not  accept  the  maxim, 
"AU  is  fair  in  war,"  and  even  the  carrying  off  of  non- 
combatant  enemies  without  enslavement  did  not  meet  his 
approval.     O  si  sic  omnia. 

25  Canadian  Act,  33  Vic,  c.  3  (May  12,  1870). 

26  Dominion  Act  (1905),  4  and  5  Edward  VII,  c.  3  and 
c.  42. 

27  Perhaps  the  following  chronology  may  be  of  value — 
or  at  least  interesting: 

1758  First  Legislative  Assembly  in  Nova  Scotia; 

1759-1760  Conquest  of  Canada; 

1760  Military  Rule  in  Canada; 

1763  Formal  Cession  of  Canada  and  Royal  Proclama- 
tion; 

1769  Prince  Edward  Island  formed  into  a  separate 
Province,  being  divided  from  Nova  Scotia; 

1773  First  Parliament  in  Prince  Edward  Island; 

1774  The  Quebec  Act; 

1784  First  Legislative  Assembly  in  New  Brunswick; 

1791  Constitutional  Act; 

1792  First  Legislative  Assembly  in  Upper  Canada  and 
in  Lower  Canada; 

1832  Legislative  Council  formed  in  New  Brunswick; 
1837-1838  Rebellion  in  Upper  and  Lower  Canada; 
1838  Legislative  Council  formed  in  Nova  Scotia  sepa- 
rate from  Executive; 


NOTES  TO  LECTURE  I  61 

1840  Union  Act; 

1841  First  Canadian  Parliament  for  United  Canada; 
1848  Responsible  Government  fully  recognised  in  New 

Brunswick ; 

1848  And  in  Nova  Scotia,  having  been  partially  recog- 
nised in  1840; 

1850  Prince  Edward  Island  obtains  full  Responsible 
Government ; 

1858  British  Columbia  a  Crown  Colony  with  Represen- 
tative Government; 

1866  British  Columbia  and  Vancouver  Island  united  as 
one  Colony; 

1867  British  North  America  Act; 
1870  Province  of  Manitoba  formed; 

1870  N.  W.  Territories  organised  with  a  Lieutenant- 
Governor  and  small  nominated  Council; 

1871  British  Columbia  admitted  into  Dominion; 
1873  Prince  Edward  Island  admitted; 

1873  Prince  Edward  Island  abolished  Legislative  Coun- 
cil; 

1876  Manitoba  abolished  Legislative  Council; 

1888  N.  W.  Territories  receive  a  Legislative  Assembly; 

1891  New  Brunswick  abolished  Legislative  Council; 

1905  Provinces  of  Alberta  and  Saskatchewan  formed. 

The  Constitutional  History  of  Canada  (using  the  word 
"Canada"  in  its  historical  sense  and  not  in  the  present 
geographical  sense)  divides  itself  into  seven  periods: 
(1)  Before  the  Conquest,  1759-1760;  (2)  from  the  Conquest 
to  the  Royal  Proclamation  of  1763;  (3)  from  that  Procla- 
mation to  the  Quebec  Act  of  1774;  (4)  from  the  Quebec 
Act  to  the  Constitutional  Act  of  1791;  (5)  from  the  Con- 
stitutional Act  to  the  Union  of  the  Canadas  in  1841 ; 
(6)  from  the  Union  of  the  Canadas  to  the  formation  of 
the  Dominion  in  1867  under  the  British  North  America 
Act;  (7)  since  the  formation  of  the  Dominion. 


LECTURE  II 
THE  WRITTEN  CONSTITUTION 

The  word  "Constitution"  carries  with  it  a 
different  connotation  in  English  and  in  American 
usage,  and  we  in  Canada  follow  the  English.  In 
our  usage,  the  Constitution  is  the  totality  of  the 
principles  more  or  less  vaguely  and  generally 
stated  upon  which  we  think  the  people  should 
be  governed:  in  American  usage,  the  Constitution 
is  a  written  document  containing  so  many  words 
and  letters  which  authoritatively  and  without 
appeal  dictates  what  shall  and  what  shall  not  be 
done.  With  us  anything  unconstitutional  is 
wrong  no  matter  how  legal  it  may  be;  with  the 
American  people  anything  unconstitutional  is 
illegal  however  right  it  may  be — with  the  Ameri- 
cans anything  which  is  unconstitutional  is  illegal, 
with  us  to  say  that  a  measure  is  unconstitutional 
rather  suggests  that  it  is  legal  but  inadvisable.^ 

This  difference  of  meaning  necessarily  arose 
from  the  fact  that  the  so-called  Constitution  of 
England  was  unwritten,^  while  the  United  States 


THE  WRITTEN  CONSTITUTION         53 

began    its    career   by    formulating   the    rules    by 
which  it  should  be  governed. 

In  the  ultimate  analysis  the  difference  arises  from 
the  fact  that  the  Fathers  of  this  Union  of  States  knew 
how  to  write;  and  that  having  the  power,  they  had 
that  desire  to  reduce  their  views  to  a  written  form 
which  characterises  the  philosopher. 

In  the  mother  country,  the  philosophic  students  of 
the  problems  of  politics  also  gave  written  expression 
from  time  to  time  to  their  views — ^but  these  students 
differed  from  those  philosophers  in  that  they  had 
no  power  to  cause  their  writing  to  be  adopted  as  a 
binding  document.  No  more  profound  studies  have 
ever  been  made  in  the  theory  of  government  and 
concerning  the  balance  of  function  of  its  various 
departments  than  those  of  Enghshmen — but  English- 
men could  give  them  only  as  speculations,  they  had 
not  the  power  to  have  their  theories  adopted  by  the 
Nation  at  large. 

The  Fathers  of  this  Nation,  when  they  had  drawn 
from  English  and  other  sources  what  they  conceived 
to  be  the  true  principles  upon  which  government 
should  be  carried  on,  went  further  and  formulated 
their  theories  in  a  document  framed  with  much  skill: 
and  they  had  the  fortune  to  have  that  document 
declared  binding  not  only  upon  the  Nation  as  it  then 
existed,  but  also  upon  the  Nation — speaking  gen- 
erally— as  it  was  to  be  to  the  end  of  time.^ 


54  CONSTITUTION  OF  CANADA 

Canada  stands  between  the  two — we  inherit  the 
constitutional  rules  of  England  and  at  the  same 
time  we  have  laid  down  for  us  in  writing  much  by 
which  we  are  bound. 

Nor  is  this  apparent  for  the  first  time  in  the 
British  North  America  Act.  Leaving  aside  the 
periods  before  1763  (the  French  period  and  the 
period  of  the  forcible  occupation  of  Canada  by 
the  British)  we  find  that  in  the  third  period  (that 
from  the  cession  of  Canada  to  the  coming  in  force 
of  the  Quebec  Act,  1774)  the  Royal  Instructions 
to  the  Governors  give  directions  in  general  terms 
as  to  what  is  to  be  done. 

In  the  Instructions  to  General  James  Murray, 
"Our  Captain  General  and  Governor  in  Chief  in 
and  over  Our  Province  of  Quebec  in  America  and 
of  all  Our  Territories  dependent  thereupon — 
Given  at  Our  Court  at  St.  James  the  seventh  day 
of  December,  1763,"*  he  is  directed  to  nominate 
and  establish  a  Council  to  assist  him  in  the 
administration  of  government,  to  be  composed  of 
the  Lieutenant-Governors  of  Montreal  and  of 
Three  Rivers,  the  Chief  Justice  of  the  Province, 
the  Surveyor-General  of  Customs  (all  of  whom 
were  appointed  by  the  Home  Government)  and 
eight  other  persons  to  be  chosen  by  Murray  from 
amongst  the  "most  considerable  of  the  Inhabi- 
tants   of   or    Persons    of   Property    in    our    said 


THE  WRITTEN  CONSTITUTION         55 

Province."  He  was  also  directed  to  summon  a 
General  Assembly  of  the  Freeholders  of  the 
Province,  as  soon  as  the  more  pressing  affairs  of 
government  would  allow  him  to  pay  attention  to 
this  important  object  (we  have  seen  that  this  was 
not  in  fact  done).  In  the  meantime  he  was 
instructed  to  make  such  Rules  and  Regulations, 
by  the  advice  of  the  Council,  as  should  appear 
to  be  necessary  for  the  peace,  order  and  good 
government  of  the  Province  but  not  tending  to 
affect  the  life,  limb  or  liberty  of  the  subject  or 
to  the  imposing  of  any  duty  or  tax.  Explicit 
instructions  were  given  as  to  the  form  of  the 
"Laws,  Statutes  and  Ordinances  to  be  passed," 
e.g.,  each  different  matter  must  be  provided  for 
by  a  different  law,  no  clause  inserted  foreign  to 
the  title,  no  perpetual  clause  in  a  temporary  law, 
no  alteration,  repeal,  etc.,  by  general  words. 

All  laws,  statutes  and  ordinances  were  to  be 
transmitted  to  the  Home  Government:  and  none 
affecting  the  Commerce  or  Shipping  of  the  King- 
dom or  the  Prerogatives  of  the  Crown  or  the 
property  of  British  subjects  was  to  be  approved 
by  the  Governor  until  His  Majesty's  pleasure 
should  be  known. 

The  Assembly  was  not  to  be  permitted  to 
arrogate  privileges  to  which  it  was  not  entitled; 
its  members  were  not  to  be  protected  against  suits 


56  CONSTITUTION  OF  CANADA 

at  law  during  their  term  of  office;^  it  was  not  to 
adjourn  except  de  die  in  diem,  and  was  not  to 
assume  the  sole  framing  of  money  bills  refusing 
to  allow  the  Council  to  alter  or  amend  the  same.® 

The  Governor  was  "not  to  admit  of  any  Eccle- 
siastical jurisdiction  of  the  See  of  Rome  or  any 
other  foreign  Ecclesiastical  Jurisdiction  whatso- 
ever in  the  Province":  but  was  to  establish  the 
Church  of  England.  The  extent  and  conditions 
of  grants  of  land  were  specified,  purchases  of  land 
by  individuals  from  Indians  forbidden  and  many 
other  specific  provisions  made.^ 

The  Quebec  Act  of  1774  assured  to  Roman 
Catholics  the  free  exercise  of  their  religion  and 
relieved  Roman  Catholic  officials  from  taking  the 
Oath  of  Supremacy:  it  continued  the  English 
criminal  law  subject  to  such  alterations  and 
amendments  as  the  Governor  by  and  with  the 
advice  and  consent  of  the  Legislative  Council 
should  cause  to  be  made,  but  provided  that  in 
"all  matters  of  controversy  relative  to  property 
and  civil  rights"®  resort  should  be  had  to  the 
former  French  laws  of  Canada  until  they  should 
be  varied  or  altered  by  ordinances  passed  by  the 
Governor  by  and  with  the  advice  of  the  Legis- 
lative Council. 

The  Act^  further  provided  that  no  ordinance 
should  be  passed  unless  a  majority  of  the  Council 


THE  WRITTEN  CONSTITUTION         57 

should  be  present  (with  an  exception  in  cases  of 
emergency  between  January  1  and  May  1). 
During  the  currency  of  this  Act,  the  government 
was  the  same  as  it  had  been  in  fact  during  the 
preceding  period  by  the  Governor  and  his  Council, 
but  the  Council  was  now  to  consist  of  such  persons 
resident  in  the  Province  not  less  in  number  than 
seventeen  or  more  than  twenty-three  as  His 
Majesty  should  appoint  under  His  Signet  or  Sign 
Manual. 

By  the  Act  of  1791,  as  we  have  seen,  the  two 
Provinces  were  to  have  separate  legislatures,^" 
each  to  consist  of  two  Houses,  the  Legislative 
Council  and  the  Legislative  Assembly. 

Members  of  the  Legislative  Council  were  to  be 
summoned  by  the  Governor  or  Lieutenant- 
Governor  under  the  Great  Seal  of  the  Province, 
not  fewer  than  seven  for  Upper  or  than  fifteen 
for  Lower  Canada  and  "a  sufficient  number  of 
discreet  and  proper  persons." 

A  curious  provision  (never  acted  upon)  was 
contained  in  this  Act,  viz.,  that  whenever  the  King 
should  confer  any  hereditary  title  of  honour  upon 
any  subject,  he  might  annex  thereto  a  hereditary 
right  to  a  seat  in  the  Legislative  Council — this 
was  of  course  by  analogy  with  the  House  of 
Lords." 

The  Assembly  was  to  consist  of  a  number  of 


68  CONSTITUTION  OF  CANADA 

persons  elected  by  the  people,  the  constituencies 
and  the  number  of  representatives  to  be  fixed  by 
the  Governor  or  Lieutenant-Governor  in  the  first 
instance,  the  whole  number  in  Upper  Canada  to 
be  not  less  than  sixteen  and  in  Lower  Canada  not 
less  than  fifty.  The  electorate  was  to  consist  of 
British  subjects  over  twenty-one  years  of  age 
with  certain  property  qualification.  But  the 
number,  constituencies,  etc.,  could  be  at  any  time 
altered  by  the  Provincial  Parliament. 

The  Council  and  Assembly  were  to  be  called 
together  at  least  once  in  every  twelve  calendar 
months  and  the  Assembly  was  to  continue  for  four 
years  and  no  longer,  but  subject  to  dissolution 
at  any  time  by  the  Governor  or  Lieutenant- 
Governor;  the  Legislative  Council  was  perma- 
nent, the  members  of  that  body  being  appointed 
for  life;  the  Speaker  of  the  Council  was  ap- 
pointed by  the  Governor  or  Lieutenant-Governor 
in  analogy  with  the  Lord  Chancellor  (or  Lord 
Keeper),  the  Speaker  of  the  House  of  Lords;  the 
Assembly  elected  its  own  Speaker  as  did  the  House 
of  Commons  at  Westminster.  Any  Act  of  the 
Legislature  might  be  reserved  for  His  Majesty's 
pleasure;  the  Governor  or  Lieutenant-Governor 
might  also  withhold  His  Majesty's  consent  to  any 
Act.  The  King  might  also  disallow  any  Bill  to 
which  his  assent  had  been  given  in  the  Province 


THE  WRITTEN  CONSTITUTION         59 

within  two  years  of  the  time  at  which  it  was 
received  at  Westminster. 

Full  power  was  given  to  repeal  or  vary  any 
existing  law — so  that  full  legislative  power  was 
entrusted  to  the  local  legislatures,  subject  to  the 
approval  of  the  Governor^"  and  to  the  right  of 
the  King  (i.e.,  the  Home  Administration)  to  dis- 
allow any  statute  within  two  years  of  its  receipt. 

It  will  be  seen  that  the  main  features  of  this 
"Constitution"  followed  the  lines  of  the  tradi- 
tional form  of  government  in  England,  and  indeed 
the  first  Lieutenant-Governor  of  Upper  Canada 
explicitly  stated  in  his  address  dismissing  the 
legislators  at  the  close  of  the  first  Parliament 
that  the  Province  had  been  given  a  Constitution 
"the  very  image  and  transcript  of  that  of  Great 
Britain."  So  far  as  legislative  power  was  con- 
cerned that  was  true,  but  the  responsibility  of 
the  Ministers  of  the  Crown  to  the  popular  body 
was  not  provided  for. 

While  there  was  a  clear  intention  that  an 
Executive  Council  should  be  formed  in  each 
Province,  there  was  no  provision  for  the  manner 
in  which  it  was  to  be  constituted,  what  its  duties 
should  be,  etc.,  and  in  the  absence  of  express 
provision,  disputes  arose.  An  Executive  Council 
was  in  fact  appointed  at  the  beginning  of  Upper 
(as  well  as  Lower)    Canada's  separate  existence 


60  CONSTITUTION  OF  CANADA 

and  the  institution  was  continued  without  inter- 
ruption. 

In  the  two  Provinces,  the  House  of  Assembly 
claimed  the  rights  and  privileges  of  the  British 
House  of  Commons  and  (speaking  generally)  had 
the  claim  allowed;  the  Legislative  Council  corre- 
sponded to  the  House  of  Lords ;  there  was  nothing 
in  the  formal  Constitution  of  England  to  which 
the  Executive  Council  could  correspond  but  the 
Privy  Council;  and  nothing  in  the  informal 
Constitution  but  the  Cabinet. 

At  the  present  time^^  there  is  little  difficulty  in 
determining  the  relative  functions  and  powers  of 
the  Crown,  the  Houses  of  Parliament,  and  the 
"Ministry";  but  in  1792  the  task  was  not  so  easy. 

At  the  Common  Law  and  before  the  Common- 
wealth, the  King  did  not  only  reign,  he  also 
governed.  He  was  master  in  theory;  and  in 
practice  he  was  as  much  and  as  far  master  as  his 
subjects  would  permit  without  successful  armed 
opposition.  The  Revolution  changed  both  theory 
and  practice;  thereafter  both  in  theory  and  in 
practice,  the  King  must  find  a  Minister  who  would 
take  upon  himself  the  responsibility  of  the  King's 
acts. 

While  this  was  never  forgotten.  King  George 
III,  in  his  long  reign  came  perilously  near  the  old 
practice  in  some  instances ;  but  he  never  failed 


THE  WRITTEN  CONSTITUTION         61 

to  find  a  Minister  to  father  any  of  his  acts, 
however  unwise.  In  every  case  the  King  was 
considered  blameless,  "the  King  can  do  no  wrong," 
and  the  Minister  was  the  culpable  party.  That 
is  Responsible  Government,  i.e.,  the  Minister  who 
is  responsible  for  the  advice  to  the  King  is  respon- 
sible to  the  representatives  of  the  people  in 
Parliament,  for  giving  such  advice. 

In  the  Mother  Country,  these  propositions  were 
acknowledged  in  theory  and  fairly  well  observed 
in  practice. 

In  Canada,  there  was  no  resident  hereditary 
head  of  the  State,  who  could  do  no  wrong.  The 
effective  power  at  the  head  of  affairs  was  an 
officer  appointed  for  a  short  term  of  years  by  the 
King  on  the  advice  of  the  Home  Administration, 
not  to  reign,  but  to  govern;  he  had  specific 
instructions  as  to  many  of  his  duties,  and  was 
responsible  to  the  authority  which  appointed  him. 
Unlike  the  King,  he  could  do  wrong;  unlike  the 
Home  Ministry,  he  was  responsible  not  to  the 
people  or  their  representatives,  but  to  an  author- 
ity across  the  seas.  It  naturally  followed  that 
those  whom  he  appointed  to  carry  on  the  business 
of  State  were  responsible  to  him  alone  and  not  to 
Parliament;  their  advice  he  need  not  seek;  if 
sought  and  given,  it  might  be  neglected,  and  he 


62  CONSTITUTION  OF  CANADA 

could  not  hide  himself  behind  any  officer  or  the 
advice  of  any  officer. 

The  Constitution  of  Canada,  then,  was  far  from 
being  the  image  and  transcript  of  that  of  Great 
Britain. 

In  the  early  days  of  the  Colony,  the  inhabitants 
were  too  much  engaged  in  material  matters,  in 
chopping  down  the  forests,  in  clearing  the  land 
and  in  making  a  home  in  the  New  World,  to  pay 
much  attention  to  the  theory  or  indeed  to  the 
practice  of  government.  The  Governor  had 
Crown  Lands  to  draw  upon  and  other  revenues, 
and  did  much  as  he  pleased  without  interference 
or  complaint;  Parliament  had  certain  taxes  im- 
posed by  its  own  authority  and  certain  customs 
duties,  and  this  money  was  expended  under  the 
order  of  Parliament.  The  money  at  the  disposal 
of  the  Governor  tended  rather  to  decrease  than 
to  increase;  that  of  the  Parliament  had  the 
reverse  tendency;  and  it  was  inevitable  that  at 
some  time  the  Governor  would  desire  to  encroach 
on  the  money  of  Parliament.  And  if  money  is  not 
the  root  of  all  evil,  it  is  the  root  of  most  revolu- 
tions and  constitutional  changes. 

After  a  long  agitation  largely  upon  Responsible 
Government,  there  was  a  short-lived  Rebellion  in 
each  Province,  1837-1838.     Lord  Durham  made 


THE  WRITTEN  CONSTITUTION         63 

an  investigation  and  report  which  resulted  in  the 
Union  Act  of  1840." 

This  provided  for  the  union  of  the  two  Prov- 
inces, for  one  Legislative  Council  and  one 
Assembly  with  power  "within  the  Province  of 
Canada  ...  to  make  laws  for  the  peace,  welfare 
and  good  government  of  the  Province  of  Canada." 
Legislative  Councillors  not  fewer  in  number  than 
twenty  were  to  be  appointed  for  life  by  the 
Governor  under  the  Great  Seal  of  the  Province. 
(In  1856,  provision  was  made  by  the  Canadian 
Statute,  19-20  Vic,  c.  140,  for  Legislative  Coun- 
cillors being  elected,  so  that  thereafter  there  were 
two  elected  Chambers  as  in  the  United  States: 
but  this  produced  no  real  change  in  the  working 
Constitution  except  somewhat  to  increase  the 
importance  of  the  Legislative  Council.)  The 
Governor  also  was  to  appoint  the  Speaker  of  the 
Council.  In  the  Assembly  an  equal  number  of 
representatives  was  to  come  from  each  part, 
formerly  Upper  Canada  arid  Lower  Canada. 
Constituencies  were  laid  out  .  ith  power  reserved 
to  the  Canadian  Parliament  to  change  constit- 
uencies, alter  the  apportionment,  etc.  (the  appor- 
tionment not  to  be  altered  without  a  two-thirds 
vote  in  each  House).  The  Governor  had  still  the 
right  to  withhold  the  Royal  assent  and  to  reserve 
any   Bill    for   Her   Majesty's    pleasure    and   the 


64  CONSTITUTION  OF  CANADA 

Queen  might  disallow  any  Bill  to  which  the 
Governor  had  given  his  consent  within  two  years 
of  its  receipt  at  Westminster. 

The  most  important  change  that  was  made 
was  to  surrender  the  hereditary  revenues  of  the 
Crown  for  a  fixed  sum  of  £45,000  to  pay  the 
Governor's  and  Judges'  salaries  and  another  of 
£30,000  to  pay  certain  other  officials.  The 
result  was  necessarily  to  take  from  the  Governor 
the  means  of  defraying  the  expenses  of  govern- 
ment, and  thereby  to  force  him  to  apply  to  Par- 
liament for  money — the  purse-strings  were  held 
by  the  Assembly  and  Responsible  Government  was 
the  necessary  consequence. 

But  notwithstanding  the  broad  terms  of  the 
Act  and  the  benevolent  intentions  of  the  Imperial 
Parliament,  full  Home  Rule  could  not  be  expected 
at  that  time — accordingly  we  find  it  provided^^ 
"all  powers  and  authorities  expressed  in  this  Act 
to  be  given  to  the  Governor  of  the  Province  of 
Canada  shall  be  exercised  by  such  Governor  in 
conformity  with  and  subject  to  such  Orders, 
Instructions  and  Directions  as  Her  Majesty  shall 
from  time  to  time  see  fit  to  make  or  issue." 

But  though  this  provision  looks  like  a  for- 
midable diminution  of  the  responsibility  of  the 
Ministry  to  the  people  of  Canada  alone,  it  was 
not  in  fact  of  any  consequence,  the  results  were 


THE  WRITTEN  CONSTITUTION         65 

practically  negligible — no  British  administration 
ever  set  itself  against  the  will  of  Canada  as 
expressed  in  its  Legislature,  and  for  all  practical 
purposes  the  clause  might  have  been  omitted/^ 

It  took  some  time  for  the  Canadas  to  settle 
down  under  the  Union  Act:  but  on  the  whole  the 
Union  worked  well. 

The  present  written  "Constitution"  is  to  be 
found  in  the  British  North  America  Act  of  1867, 
with  the  amendments  thereto. 

The  Preamble  of  the  Statute  expresses  the 
desire  of  the  Provinces  of  Canada,  Nova  Scotia 
and  New  Brunswick  to  be  united  into  one 
Dominion  under  the  Crown  of  Great  Britain  and 
Ireland  "with  a  constitution  similar  in  principle 
to  that  of  the  United  Kingdom,"  and  adds  that 
it  is  expedient  "not  only  that  the  Constitution 
of  the  Legislative  Authority  in  the  Dominion  be 
provided  for,  but  also  the  nature  of  the  Executive 
Government  therein  be  declared." 

A  "Dominion  of  Canada"  was  authorised  to  be 
composed  of  four  Provinces,  Ontario,  Quebec, 
Nova  Scotia  and  New  Brunswick,  the  boundaries 
of  which  Provinces  were  to  be  the  former  bounda- 
ries of  Upper  Canada  and  Lower  Canada  and  the 
existing  boundaries  of  Nova  Scotia  and  New 
Brunswick,  respectively,  with  provisions  for  the 
admission     of     Newfoundland,     Prince     Edward 


66  CONSTITUTION  OF  CANADA 

Island  and  British  Columbia  on  the  Address  of 
the  Parliament  of  the  Dominion  and  of  the  Par- 
liament of  the  Colony  to  be  admitted.  There  was 
also  a  provision  for  the  admission  of  Rupert's 
Land  and  the  Northwestern  Territory  or  either 
of  them  on  the  Address  of  the  Parliament  of  the 
Dominion. 

(No  power  was  given  to  the  Dominion  to 
establish  new  Provinces,  but  this  defect  was 
corrected  by  "The  British  North  America  Act, 
1871."^^  The  Act  empowered  the  Parliament  of 
Canada  to  establish  new  Provinces  in  any  part 
of  the  territory  of  Canada  not  already  in  a 
Province  and  make  provision  for  the  constitution 
and  administration  of  any  such  Province.^*  The 
same  Act  also  provides  for  the  Parliament  of 
Canada  with  the  consent  of  the  Provincial  Legis- 
lature increasing,  diminishing  or  altering  the 
limits  of  any  Province.) 

Passing  over  the  division  between  Dominion 
and  Provinces  of  the  public  property  and  the 
adjustment  of  national  debts,  we  note  that  the 
Dominion  as  a  whole  was  to  have  one  Parliament 
consisting  of  the  Sovereign,  an  Upper  House 
called  the  Senate,  and  the  House  of  Commons : 
each  of  the  Provinces  was  to  have  a  Legislature, 
in  Ontario  of  one  House  (the  Legislative  Assem- 
bly), in  Quebec  of  two  Houses   (the  Legislative 


THE  WRITTEN  CONSTITUTION         67 

Council  and  the  Legislative  Assembly)  and  in 
Nova  Scotia  and  New  Brunswick  as  they  were  on 
the  passing  of  the  Act  (i.e.,  with  two  Houses,  the 
Legislative  Council  and  the  Legislative  Assembly). 

The  Provincial  Legislatures  were  given  power^® 
to  amend  the  Constitution  of  the  Province  except 
as  regards  the  office  of  Lieutenant-Governor:  and 
New  Brunswick  has  got  rid  of  her  Legislative 
Council.'" 

Nova  Scotia  and  Quebec  retain  their  Legislative 
Council  and  still  have  the  bicameral  system.'^ 

Manitoba  was  organised  in  1870^^  with  two 
Chambers  but  she  early  got  rid  of  the  Legislative 
Council." 

Prince  Edward  Island  began  in  1773  with  an 
elective  Assembly  and  an  appointed  Council:  in 
1862,  the  Council  was  made  elective  also,  and  in 
1893,  the  Council  and  the  Assembly  were  com- 
bined so  as  to  form  but  one  House — for  each 
of  the  fifteen  constituencies  there  were  to  be 
and  are  elected  one  Councillor  and  one  Assembly- 
man by  voters  of  different  qualifications; -but  all 
Councillors  and  Assemblymen  sit  and  vote  to- 
gether. (This  will  remind  the  student  of  Parlia- 
mentary History  of  the  ancient  Scottish  Parlia- 
ment.) 

Prince  Edward  Island  came  into  Confederation 
with  only  one  House. 


68  CONSTITUTION  OF  CANADA 

British  Columbia  had  one  House  called  the 
Legislative  Council.  She,  in  anticipation  of  being 
admitted  into  the  Dominion,  changed  the  name 
of  her  Chamber  to  Legislative  Assembly.^* 

When  the  Provinces  of  Alberta  and  Saskatch- 
ewan were  created  by  the  Dominion^^  in  1905,  it 
was  provided  that  the  Legislature  should  have 
only  one  Chamber  called  the  Legislative  Assembly. 

The  Yukon  Territory  has  a  "Territorial 
Council"  substantially  the  same  as  the  Legislative 
Assembly  of  the  organised  Provinces — the  North 
West  Territories,  comprising  all  British  territo- 
ries in  this  part  of  North  America  and  all  islands 
adjacent  thereto  not  included  in  any  Province  or 
the  Yukon  Territory  or  Newfoundland  and  its 
dependencies,  has  not  as  yet  any  Legislature. 

While  only  two  of  the  nine  Provinces  have  now 
two  Houses,  the  Dominion  retains  the  old  system, 
having  still  her  Senate  and  House  of  Commons. 

The  Senate  had  originally  seventy-two  mem- 
bers, twenty-four  from  Ontario,  twenty-four  from 
Quebec,  twelve  from  Nova  Scotia  and  twelve  from 
New  Brunswick.  The  number  from  Ontario  and 
Quebec  remains  the  same  but  after  Prince  Edward 
Island  was  admitted  into  the  Dominion,  Nova 
Scotia  and  New  Brunswick  each  lost  two  Senators 
and  the  four  Senators  were  allotted  to  the  new 
Province:  Manitoba  has   four,   British   Columbia 


THE  WRITTEN  CONSTITUTION         69 

three,  and  Alberta  and  Saskatchewan  each  four, 
making  eighty-seven  in  all."® 

The  Senator  is  appointed  for  life  with  power 
to  resign,  and  losing  his  seat  if  he  fails  for  two 
consecutive  sessions  to  give  his  attendance  in  the 
Senate,  becomes  bankrupt,  etc.  Modest  quali- 
fications are  prescribed."^ 

Power  is  reserved  to  the  Sovereign  on  the 
recommendation  of  the  Governor-General  to 
direct  that  three  or  six  members  be  added  to  the 
Senate  from  the  three  divisions  of  Canada 
equally;"^  but  if  this  be  done  there  are  to  be  no 
more  appointments  until  the  Senate  has  its 
normal  number  of  members. ^^ 

The  Speaker  is  appointed  by  the  Government 
of  the  day:  he  has  a  vote  and  in  case  of  equality 
of  votes,  the  question  passes  in  the  negative. 

The  House  of  Commons  is  elected  by  the 
people,  the  franchise  being  fixed  by  the  Canadian 
Parliament,  and  the  representation  is  proportion- 
ate to  the  population. 

The  original  number  of  members  from  each 
Province  was  fixed  by  the  British  North  America 
Act ;  but  thereafter  the  method  prescribed  was 
as  follows  :  A  census  is  taken  decennially ;  Quebec 
is  given  her  fixed  quota  of  sixty-five  members  and 
the  other  Provinces  are  assigned  a  number  of 
members  which  will  bear  the  same  ratio  to  sixty- 


70  CONSTITUTION  OF  CANADA 

five  as  its  population  bears  to  the  population  of 
Quebec.^" 

In  the  Provinces,  members  of  the  Legislative 
Council  (where  such  a  body  exists)  are  nominated 
by  the  Government  of  the  Province,  the  Dominion 
having  no  authority  in  the  premises;  their  tenure 
of  office  is  for  life.  The  Speaker  of  this  House 
is  appointed  by  the  Local  Government:  and  he 
has  the  same  powers  as  to  voting,  etc.,  as  the 
Speaker  of  the  Senate. 

The  Legislative  Assemblies  are  elected  by  the 
people  on  a  franchise  and  with  constituencies 
fixed  by  the  Local  Legislature,  and  the  number  of 
representatives  is  also  so  fixed. 

Every  House  of  Commons  has  a  life  of  five 
years  only^^  and  is  subject  to  be  sooner  dissolved 
by  the  Governor-General ;  each  Legislative  Assem- 
bly has  a  life  of  four  years  only  subject  to 
being  sooner  dissolved  by  the  Lieutenant- 
Governor;  in  no  case  is  a  period  of  twelve  months 
to  intervene  between  the  last  sitting  of  Parlia- 
ment or  Legislature  and  its  first  sitting  in  the 
next  session. 

We  now  come  to  functionaries  whose  office  on 
paper  is  exceedingly  important — the  Executive 
Government  in  Canada  being  in  the  Sovereign,  he 
appoints  an  officer  known  as  the  Governor-General 
as  the  chief  executive  officer  for  carrying  on  the 


THE  WRITTEN  CONSTITUTION         71 

government  in  Canada  on  behalf  and  in  the  name 
of  the  Sovereign:  he  has  a  Privy  Council  (but  it 
is  His  Majesty's  Privy  Council  for  Canada)  to 
aid  and  advise  the  government. 

In  the  Provinces  there  is  an  officer  called  the 
Lieutenant-Governor  appointed  by  the  Governor- 
General  in  Council  at  Ottawa  during  pleasure, 
but  he  cannot  be  removed  within  five  years  of  his 
appointment  except  for  cause  assigned ;  his  salary 
is  paid  by  the  Dominion  and  he  has  an  Executive 
Council.^' 

Money  bills  must  originate  in  the  House  of 
Commons  and  no  appropriation  or  tax  can  be 
voted  for  any  purpose  that  has  not  first  been 
recommended  to  the  House  by  message  of  the 
Governor-General  in  that  session — in  the  Legis- 
lative Assemblies  it  is  of  course  the  Lieutenant- 
Governor  who  must  recommend. 

The  Legislative  power  is  divided  between 
Dominion  and  Provinces,  all  classes  of  subjects 
not  specifically  assigned  to  the  Provinces  falling 
to  the  Dominion. 

The  Provincial  Legislatures  deal  with  local 
affairs  and  "generally  all  matters  of  a  merely 
local  or  private  nature  within  the  Province" — 
Section  92  enumerates  the  subjects  of  Provincial 
legislation  while  the  preceding  section  enumerates 
the  subjects  of  Dominion  legislation.^^ 


72  CONSTITUTION  OF  CANADA 

Where  a  bill  has  been  passed  by  the  Houses  of 
Parliament  and  is  presented  to  the  Governor- 
General,  he  may  (1)  assent  to  it  in  His  Majesty's 
name;  (2)  withhold  His  Majesty's  assent,  or 
(3)  reserve  the  bill  for  the  King's  pleasure — if 
he  gives  assent,  the  bill  may  be  disallowed  by  the 
King  in  Council,  i.e.,  the  Home  Administration, 
within  two  years  of  its  receipt — if  the  bill  is  re- 
served it  has  no  force  unless  within  two  years  the 
Governor-General  sends  a  message  to  Parliament 
that  it  has  received  His  Majesty's  assent. 

The  Lieutenant-Governor  has  the  same  power 
in  local  legislation  but  he  reserves,  etc.,  for  the 
Governor-General  in  Council  and  the  disallowance 
of  any  bill  assented  to  must  be  made  by  the 
Governor-General  in  Council  within  one  year. 

No  Province  may  legislate  prejudicially  affect- 
ing any  right  or  privilege  with  respect  to  denomi- 
national schools  which  any  class  of  persons  had 
by  law  at  the  time  of  the  Union — the  rights  of 
minorities  in  respect  of  separate  schools  are 
strictly   guarded.^* 

All  judges  are  appointed  by  the  Dominion  from 
the  Bar  of  the  respective  Provinces  (Courts  of 
Probate  in  Nova  Scotia  and  New  Brunswick,  and 
Surrogate  Courts  of  Probate  in  Ontario  are 
excepted). ^^ 


THE  WRITTEN  CONSTITUTION         73 

The  Dominion  pays  annually  to  the  Provinces 
a  fixed  sum  for  the  support  of  the  local  Govern- 
ments: of  course  the  local  Governments  have  also 
their  own  sources  of  revenue. 


NOTES  TO  LECTURE  II 

1  See  my  judgment  in  Bell  v.  Burlington  (1915),  34 
O.  L.  R.,  619  at  p.  622  (Appellate  Division  of  the  Supreme 
Court  of  Ontario). 

For  example,  in  theory  the  Sovereign  has  the  right  to 
refuse  to  assent  to  a  biU  which  has  passed  both  Houses  of 
Parliament.  No  Sovereign  since  Queen  Anne  has  ventured 
to  do  this — and  the  theoretical  right  is  dead  as  Queen  Anne 
herself.  No  Sovereign  would  now  dream  of  setting  up  his 
wiU  against  that  of  his  Parliament — to  do  so  would  be 
unconstitutional.  But  there  are  many  parts  of  the  Consti- 
tution by  no  means  so  well  settled.  If  ten  years  ago,  a 
statesman  or  lawyer  had  been  asked  whether  the  House 
of  Lords  could  reject  a  budget  passed  by  the  Commons, 
he  would  have  answered,  "The  House  of  Lords  no  doubt 
can,  but  it  wUl  not."  And  yet  we  know  the  House  of 
Lords  did  that  very  thing — with  the  result  we  know. 

2  The  recent  legislation  whereby  the  House  of  Commons 
was  enabled  to  make  law  without  the  assent  of  the  House 
of  Lords  has  introduced  a  modification  of  this  statement — 
the  "Constitution"  of  the  Mother  Country  is  now  in  part 
written. 

3  The  quotation  is  from  an  Address  delivered  by  myself 
before  the  Iowa  State  Bar  Association  at  Cedar  Rapids, 
Iowa,  June  28,  1912.  Prof.  Hugo  Miinsterberg  says,  "the 
American  people  is  in  its  thought  conservative  to  the  last 
degree."  "The  Americans,"  London  edition,  Williams  & 
Norgate,  1916,  at  p.  217  ad  init. 

4  The  fuU  text  of  these  Instructions  wiU  be  found  in 
Shortt  &  Doughty,  pp.  132  sqq. 

5  The  privilege  of  exemption  from  arrest  on  civU  process 


NOTES  TO  LECTURE  II  75 

enjoyed  by  the  members  of  the  House  of  Commons  at  West- 
minster was  very  highly  prized.  It  was  claimed  and 
eflfectively  asserted  by  the  first  House  of  Parliament  of 
Upper  Canada  during  its  second  session  in  1793.  We  find 
on  Monday,  June  17,  this  resolution  carried:  "That  the 
Speaker  do  inform  W.  B.  Sheehan,  Esquire,  SheriflF  of  this 
district,  that  the  House  entertain  a  strong  sense  of  the 
impropriety  of  his  conduct  towards  a  member  of  this  House 
in  having  served  a  Writ  of  Capias  upon  the  said  member 
contrary  to  his  privilege,  and  that  the  House  has  only 
dispensed  with  the  necessity  of  bringing  him  to  their  bar 
to  be  further  dealt  with  from  a  conviction  that  want  of 
reflection  and  not  contempt  made  him  guilty  of  an  infringe- 
ment upon  the  privileges  of  the  House." 

That  the  members  of  the  Upper  Canada  House  had  the 
same  privilege  from  arrest  as  a  member  of  the  Imperial 
House  of  Commons  is  certain — and  that,  not  only  during 
the  sittings  of  the  House,  but  for  forty  days  before  and 
forty  days  after  is  clear  from  Reg.  v.  Gamble  and  Boulton 
(1832),  9  U.  C.  R.  546,  and  several  other  cases  down  to 
Cox  V.  Prior  (1899),  18  P.  R.  492. 

Accordingly  the  sheriff  had  reason  to  consider  himself 
lucky  in  escaping  the  fate  of  others  who  had  been  guilty 
of  somewhat  similar  acts. 

Upon  the  first  day  of  the  first  Parliament  of  James  I  in 
1603,  a  complaint  was  made  that  Sir  Thomas  Shirley,  who 
had  been  elected  a  member  of  the  House  of  Commons,  was 
arrested  four  days  before  the  sitting  of  the  Parliament  and 
imprisoned  in  the  Fleet.  A  writ  of  Habeas  Corpus  was 
issued  and  he  was  discharged.  Precedents  were  looked  into 
and  the  plaintiff  at  whose  suit  and  the  sergeant  by  whom 
the  arrest  was  made  were  sent  to  the  Tower.  The  Warden 
of  the  Fleet,  who  had  persisted  in  refusing  to  obey  the 
writ  of  Habeas  Corpus  and  deliver  up  his  prisoner,  was 
ordered  to  be  committed  "to  the  place  called  the  Dungeon 
or  Little-Ease  in  the  Tower."     Afterwards  "delivering  his 


76  CONSTITUTION  OF  CANADA 

prisoner"  and  "upon  his  knees  confessing  his  error  and 
presumption  and  professing  he  was  unfeignedly  sorry,  the 
Speaker  pronounced  his  pardon  and  discharge,  paying 
ordinary  fees  to  the  clerk  and  the  sergeant."  In  February, 
1606,  an  attorney  who  had  procured  the  arrest  of  Mr. 
James,  a  member  of  the  House  of  Commons,  and  the  officer 
who  had  arrested  him,  were  "for  their  contempt  committed 
to  the  custody  of  the  sergeant  for  a  month,  whicli  judgment 
was  pronounced  against  them  kneeling  at  the  bar,  by  Mr. 
Speaker." 

The  episode  in  Upper  Canada,  however,  was  after  the 
Constitutional  Act  of  1791,  and  that  was  after  Bunker  HiU; 
and  the  view  taken  in  England  of  the  rights  of  Colonists 
had  been  seriously  and  beneficially  modified.  See  a  series 
of  articles,  "Some  Early  Legislation  and  Legislation  in 
Upper  Canada"  in  the  Canadian  Law  Times  for  1913:  33 
Can.  L.  T.,  pp.  22,  96,  180. 

6  In  short,  the  House  of  Assembly  was  not  to  be  a 
duplicate  of  the  Imperial  House  of  Commons.  We  have 
seen  that  the  Canadian  Houses  of  Assembly  did  later  assert 
their  status  to  be  that  of  the  House  of  Commons. 

7  The  Instructions  to  Sir  Guy  Carleton  (1768)  wUl  be 
found  in  Shortt  &  Doughty,  pp.  210  sqq.  The  tenor  is  much 
the  same. 

s  Particular  attention  should  be  paid  to  this  expression, 
"property  and  civil  rights,"  now  appearing  for  the  first 
time  but  continued  in  the  legislation  till  the  present  time. 
These  words  have  been  the  cause  of  endless  discussion  and 
litigation. 

9  This  Act  (1774),  14  George  III,  c.  83,  is  printed  in 
full  in  Shortt  &  Doughty,  pp.  401  sqq. 

10  This  Act  (1791),  31  George  III,  c.  31,  is  printed  in 
full  in  Shortt  &  Doughty,  pp.  649  sqq.  It  is  well  known  to 
have  caused  the  historical  and  fateful  rupture  between 
Burke  and  Fox.     I  add  here  a  synopsis  of  its  provisions: 


NOTES  TO  LECTURE  II  77 

Sec.  1  repeals  much  of  the  Quebec  Act  (1774),  14  George 
III,  cap.  83. 

Sec.  2  provides  for  a  Legislative  Council  and  an 
Assembly  in  each  of  the  Provinces  of  Upper  Canada  and 
Lower  Canada,  with  power  to  pass  legislation  valid  when 
assented  to  by  the  Sovereign  or  the  Governor  or  Lieutenant- 
Governor  appointed  by  the  Sovereign. 

(Sections  3  to  12,  inclusive,  contain  the  provisions  as  to 
the  Legislative  Council.) 

Sec.  3  gives  power  to  the  Sovereign  to  direct  by  Sign 
Manual  the  Governor,  etc.,  to  summon  to  the  Legislative 
Council  such  persons  not  less  than  seven  or  more  than 
fifteen  as  should  be  selected  by  the  Sovereign. 

Sec.  4  provides  that  no  one  shall  be  summoned  to  the 
Legislative  Council  under  twenty-one  years  of  age  or  not 
a  British  subject  by  birth,  naturalisation  or  conquest. 

Sec.  5  makes  the  position  of  Legislative  Councillor  for 
life,  subject  to  vacation  in  cases  thereafter  mentioned. 

Sec.  6  empowers  the  Sovereign  to  annex  to  any  heredi- 
tary title  of  honour  in  the  Province,  the  hereditary  right  to 
sit  in  the  Legislative  Council.  (This  was,  of  course,  by 
analogy  to  the  House  of  Lords  in  the  mother  country;  the 
power  has  never  been  exercised.) 

Sec.  7  provides  for  forfeiture  of  this  hereditary  right. 

Sec.  8 — For  loss  of  seat  in  the  Legislative  Council  in  cer- 
tain specified  cases. 

Sec.  9  protects  hereditary  rights  in  certain  cases  of  loss 
of  seat. 

Sec.  10  declares  all  seats  and  all  heredity  forfeited  for 
treason. 

Sec.  11  provides  for  determining  contested  rights  to 
seats. 

Sec.  12 — The  Governor,  etc.,  is  to  appoint  the  Speaker. 

(Sections  13  to  25,  inclusive,  contain  the  provisions  as  to 
the  Legislative  Assembly.) 


78  CONSTITUTION  OF  CANADA 

Sec.  13  empowers  the  Sovereign  to  direct  the  Governor, 
etc.,  to  call  together  an  Assembly. 

Sec.  14 — And  to  divide  the  Province  into  Ridings,  ap- 
point Returning  Officers,  etc.,  for  an  Election. 

Sec.  15 — The  R.O.'s  to  hold  office  for  not  more  than  two 
years  from  the  commencement  of  the  Act. 

Sec.  16 — No  one  to  be  compelled  to  be  R.O.  more  than 
once. 

Sec.  17 — The  whole  number  of  representatives  not  to  be 
less  than  sixteen  in  Upper  Canada  or  less  than  fifty  in 
Lower  Canada. 

Sees.  18  and  19  prescribe  the  Writs  for  Election  and  the 
Return. 

Sec.  20 — The  electorate  to  consist  of  those  owning  land 
worth  not  less  than  40s.  (Sterling)  per  annum  in  country 
districts;  in  towns  £5  (Sterling),  or  paying  rent  not  less 
than  £10  (Sterling). 

Sec.  21  prohibits  Ministers,  Priests,  Ecclesiastics  and 
Teachers  of  any  Church,  or  form  of  religious  faith  or  wor- 
ship from  sitting  in  the  Assembly.  (This  provision  after- 
wards proved  troublesome  to  the  Methodists — some  of  their 
local  preachers  were  compelled  to  vacate  the  seats  in  the 
Assembly  to  which  they  had  been  elected.) 

Sec.  22 — None  under  twenty-one  or  not  a  British  subject 
to  be  allowed  to  vote  or  be  elected. 

Sec.  23 — And  no  one  attainted  of  treason  or  felony. 

Sec.  24 — An  oath  for  voters  is  provided. 

Sec.  25 — Eight  days'  notice  of  the  time  of  election  to  be 
given. 

Sec.  26 — And  due  notice  of  the  sitting  of  Parliament. 

Sec.  27 — Parliament  to  be  called  together  at  least  once 
every  twelve  months. 

Sec.  28 — AU  questions  to  be  decided  by  a  majority  of 
votes,  the  Speaker  of  Council  or  Assembly  to  have  a  casting 
voice. 

Sec.  29 — Oath  for  members  of  Council  and  Assembly. 


NOTES  TO  LECTURE  II  79 

Sec.  30 — The  Governor,  etc.,  authorised  to  withhold 
assent  to  legislation  or  to  reserve  for  His  Majesty's 
consideration. 

Sec.  31 — The  Governor,  etc.,  to  transmit  to  the  Secretary 
of  State  all  Bills  assented  to;  these  may  be  disallowed  by 
His  Majesty  in  Council  any  time  within  two  years  of  their 
receipt. 

Sec.  32 — Bills  reserved  for  His  Majesty's  pleasure  not  to 
have  any  eflfect  until  approval  communicated  to  Council 
and  Assembly. 

Sec.  33 — Laws  in  force  at  the  passing  of  the  Act  to 
continue  in  force  until  repealed. 

Sec.  34 — The  Governor,  etc.,  "with  such  Executive  Coun- 
cil as  shall  be  appointed  by  His  Majesty  for  the  affairs  of 
such  Province"  to  be  a  Court  of  Appeal.  (This,  curiously 
enough,  is  the  only  mention  of  an  Executive  Council  in  the 
Act  except  in  Sees.  38  and  50.  Troubles  over  the  Executive 
Council,  its  functions,  power  and  responsibility  soon  devel- 
oped and  continued  till  after  the  Rebellion  of  1837.) 

Sec.  35 — Certain  previous  regulations,  etc.,  in  respect  of 
the  Roman  Catholic  clergy  to  continue  in  force. 

Sees.  36  and  37 — For  the  support,  etc.,  "of  a  Protestant 
Clergy,"  land  to  be  allotted  "equal  in  value  to  the  seventh 
part"  of  lands  "granted  by  and  under  the  authority  of  His 
Majesty." 

(The  celebrated  Clergy  Reserves  of  one-eighth  of  the 
ungranted  lands  of  the  Crown,  not  one-seventh,  as  ordina- 
rily supposed,  since  the  Reserve  was  to  be  one-seventh  of 
the  land  granted,  i.e.,  one-eighth  of  the  whole.  What  was 
"a  Protestant  Clergy"  was  soon  in  dispute.  The  Church  of 
England  claimed  a  monopoly  of  the  title,  but  on  the  advice 
of  the  Law  Officers  of  the  Home  Government,  the  Church 
of  Scotland  had  its  claim  allowed  as  being  an  Established 
Church,  and  as  Protestant  as  the  Church  of  England. 
Other  and  Nonconformist  Presbyterians,  Methodists,  and 
some  other  religious  bodies  which  believed  themselves  to  be 


80  CONSTITUTION  OF  CANADA 

Protestant  Churches  and  to  have  a  Protestant  Clergy  then 
advanced  claims,  which  were  more  or  less  assented  to.  At 
length,  after  being  for  years  a  constant  source  of  irritation 
and  contention,  the  "Clergy  Reserves"  remaining  were 
applied  to  education  purposes.) 

Sec.  38 — The  Governor,  with  the  advice  of  the  Executive 
Council,  might  erect  Parsonages  and  endow  them  for  the 
Church  of  England. 

Sec.  39 — And  appoint  incumbents. 

Sec.  40 — Subject  to  the  rights  of  institution,  etc.,  of  the 
Bishop  of  Nova  Scotia. 

Sec.  41 — The  provisions  of  Sees.  36  to  40,  inclusive,  to 
be  subject  to  repeal  or  variation  by  the  Provincial  Parlia- 
ment. 

Sec.  42 — Certain  Acts  to  be  laid  before  the  Imperial 
Parliament  before  receiving  the  Royal  Assent. 

Sec.  43 — Land  in  Upper  Canada  to  be  granted  in  free 
and  common  soccage. 

Sec.  44 — Existing  grantees  there  may  surrender  their 
grants  and  receive  new  ones  in  free  and  common  soccage. 

Sec.  45 — These  new  grants  not  to  bar  any  existing  right. 

Sec.  46 — The  Imperial  Parliament  not  to  levy  any  tax, 
etc.,  except  for  the  regulation  of  navigation,  etc. 

Sec.  47 — All  taxes  levied  for  navigation,  etc.,  to  be 
applied  to  the  use  of  the  Province. 

Sec.  48 — Act  to  begin  not  later  than  December  31,  1791. 

Sec.  49 — Provincial  Elections  not  later  than  December 
31,  1792. 

Sec.  50 — In  the  interim,  Governor  and  Executive  Council 
may  make  temporary  laws,  regulations,  etc. 

11  Very  few  hereditary  titles  of  honour  have  been  con- 
ferred upon  Canadians,  some  five  Peerages,  Lords  Strath- 
cona,  Mount  Stephen,  Shaughnessy,  Beaverbrook  and  now 
Graham,  and  a  dozen  or  so  of  baronetcies — none  of  the 
peerages  and  but  a  few  of  the  baronetcies  were  created  till 
after  the  Act  of  1791  had  been  repealed  and  in  no  case  was 


NOTES  TO  LECTURE  II  81 

there  attached  thereto  the  right  to  sit  in  the  Legislative 
Council.  The  usual  Imperial  honour  granted  to  Canadians 
is  a  Knighthood,  whether  as  Knight  Bachelor  or  Knight  of 
one  of  the  Orders;  this  is  not  hereditary  but  is  confined 
to  the  original  donee.  Where  a  baronetcy  is  given  it  is 
generally  (although  not  universally)  given  to  one  without 
issue  and  without  probability  of  issue. 

12  There  was  a  Governor-in-Chief  of  all  Canada  and  a 
Lieutenant-Governor  for  each  Province.  The  Lieutenant- 
Governor  had  all  the  powers  of  the  Governor-in-Chief 
(speaking  generally)  during  the  absence  from  the 
Province  of  the  Governor-in-Chief;  during  his  presence, 
the  Lieutenant-Governor  had  no  official  functions. 

13  I  mean  in  times  of  peace;  there  is  a  certain  dislocation 
of  the  normal  constitution  at  this  time  of  war. 

14  (1840),  3  and  4  Vic,  c.  35  (Imp.).  The  continued 
agitation  for  Responsible  Government  shows  that  the  Cana- 
dian like  the  rest  of  the  British  world  and  the  American, 
will  consent  to  the  rule  of  an  oligarchy  only  so  long  as  the 
few  owe  their  power  to  the  vote  of  the  many. 

15  By  section  59. 

16  Such  provisions  are  a  survival  of  what  were  once 
living  realities,  now  atrophied  for  want  of  use:  they  do 
no  harm  and  are  therefore  tolerated  just  as  the  official 
title  of  His  Majesty  which  makes  him  King  by  the  Grace 
of  God  when  everyone  knows  he  is  King  by  grace  of  an  Act 
of  Parliament.  He  is  quite  too  sensible  to  make  a  claim  of 
Divine  Right — he  may  even  be  (like  his  grandmother.  Queen 
Victoria)  a  Jacobite  but  he  will  not  abdicate  for  that 
reason. 

17  (1871),  34  Vic,  c.  28  (Imp.),  coming  into  force  June 
29,  1871. 

IS  It  was  under  the  powers  given  by  this  Act  that  the 
Provinces  of  Manitoba,  Saskatchewan  and  Alberta  were 
formed. 

19  By  section  92  (1). 


82  CONSTITUTION  OF  CANADA 

20  By  the  New  Brunswick  Statute  of  1891,  54  Vic,  c.  9 
(N.  B.),  passed  April  16,  1891,  and  to  become  effective 
after  the  closing  of  the  first  session  of  the  Legislature 
holden  in  1894  or  at  the  dissolution  of  the  existing  LrCgis- 
lature — in  fact,  the  Legislature  ceased  to  exist  and  a  new 
Legislature  was  elected  so  that  after  April,  1892,  there 
was  no  legislation  "by  the  Lieutenant-Governor,  Legislative 
Council  and  Assembly,"  but  the  new  Legislature  (in  1893) 
had  only  one  House  and  the  legislation  thereafter  was  "by 
the  Lieutenant-Governor  and  Legislative  Assembly." 

21  There  have  been  several  attempts  to  abolish  the 
Second  Chamber  in  Nova  Scotia  and  (it  is  said)  more  than 
once  gentlemen  appointed  to  the  Council  under  a  pledge 
to  vote  for  its  abolition  have  developed  conscientious 
scruples  against  keeping  the  promise,  as  it  is  unconstitu- 
tional to  pledge  oneself  in  advance  to  vote  in  any  particular 
way.  Members  of  other  Second  Chambers  have  been  known 
to  discover  constitutional  obstacles  against  their  voting  in 
the  way  they  did  not  wish  to  vote. 

22  By  the  Dominion  Act  (1870),  33  Vic,  c  3  (Dom.). 

23  The  Act  of  1870  gave  Manitoba  a  Legislative  Council 
of  seven  members  but  it  disappears  after  the  session  of 
1876  (the  second  session  of  the  Second  Parliament) — it  was 
abolished  by  the  Manitoba  Act,  39  Vic,  c  28. 

24  See  the  Laws  of  British  Columbia  for  1871  (34  Vic), 
No.  147. 

25  (1905),  4  and  5  Edward  VII,  cc  3  and  42. 

26  Pursuant  to  an  Address  from  the  Parliament  of 
Canada,  the  British  North  America  Act,  1867,  was 
amended  in  1915  by  the  Imperial  Statute,  5  and  6  George 
V,  c  45,  fixing  the  number  of  Senators  at  96 — from  Ontario, 
24;  from  Quebec,  24;  from  Nova  Scotia,  10;  from  New 
Brunswick,  10;  from  Prince  Edward  Island,  4;  from 
Manitoba,  6;  from  British  Columbia,  6;  from  Saskatchewan, 
6;  and  from  Alberta,  6 — 96  in  all.    This  provision,  however. 


NOTES  TO  LECTURE  II  83 

does  not  come  into  force  until  the  termination  of  the  exist- 
ing Canadian  Parliament. 

2"  The  qualifications  are  prescribed  by  section  23: 
"23.     The  qualifications  of  a  Senator  shall  be  as  follows: 
"(1.)   He  shall  be  of  the  full  age  of  thirty  years: 
"(2.)   He  shall  be  either  a  natural-born  subject  of  the 
Queen,  or  a  subject  of  the  Queen  naturalised  by  an  Act 
of  the  Parliament  of  Great  Britain,  or  of  the  Parliament 
of  the  United  Kingdom  of  Great  Britain  and  Ireland,  or  of 
the  Legislature  of  one  of  the  Provinces  of  Upper  Canada, 
Lower  Canada,  Canada,  Nova  Scotia,  or  New  Brunswick, 
before  the  Union,  or  of  the  Parliament  of  Canada  after  the 
Union. 

"(3.)  He  shall  be  legally  or  equitably  seised  as  of  free- 
hold for  his  own  use  and  benefit  of  lands  or  tenements  held 
in  free  and  common  socage,  or  seised  or  possessed  for  his 
own  use  and  benefit  of  lands  or  tenements  held  in  franc- 
aleu  or  in  roture,  within  the  Province  for  which  he  is  ap- 
pointed, of  the  value  of  four  thousand  dollars,  over  and 
above  all  rents,  dues,  debts,  charges,  mortgages,  and  incum- 
brances due  or  payable  out  of  or  charged  on  or  aflFecting 
the  same: 

"(4.)  His  real  and  personal  property  shall  be  together 
worth  four  thousand  dollars  over  and  above  his  debts  and 
liabilities : 

"(5.)  He  shall  be  resident  in  the  Province  for  which  he 
is  appointed: 

"(6.)  In  the  case  of  Quebec  he  shall  have  his  real  prop- 
erty qualification  in  the  Electoral  Division  for  which  he  is 
appointed,  or  shall  be  resident  in  that  Division." 

28  After  the  present  Canadian  Parliament  these  numbers 
will  be  four  and  eight  respectively,  representing  equally 
(1)  Ontario,  (2)  Quebec,  (3)  the  Maritime  Provinces  and 
(4)  the  Western  Provinces. 

29  Originally  the  number  of  Senators  was  restricted  to 
78.     Changes  have  been  made  from  time  to  time  and  after 


84  CONSTITUTION  OF  CANADA 

the  present  Canadian  Parliament  the  maximum  will  be  104, 
26  from  each  division  (5  and  6  George  V,  c.  45,  s.  I,  1,  v. 
Imp.). 

30  After  the  present  Canadian  Parliament  the  number 
of  members  of  Parliament  from  any  Province  must  not  be 
less  than  the  number  of  Senators  to  which  it  is  entitled 
(5  and  6  George  V,  c.  45,  s.  2  Imp.).  This  change  was 
made  by  reason  of  the  complaint  of  Prince  Edward  Island 
that  her  representation  in  the  Commons  was  reduced  to 
three  members  on  the  readjustment  of  1914  following  the 
preceding  census,  although  her  Senators  remained  four  in 
number. 

31  At  the  request  of  the  two  Houses  of  the  Canadian 
Parliament,  the  Imperial  Parliament  has  extended  the  life 
of  the  present  Canadian  Parliament  for  an  extra  year — this 
was  to  avoid  the  necessity  of  a  war-time  election. 

32  A  curious  "Constitutional"  point  has  been  mooted, 
viz.,  is  the  King  part  of  the  Local  Legislatures? 

The  British  North  America  Act,  1867,  makes  the  Par- 
liament of  Canada  consist  of  the  Queen,  the  Senate  and  the 
House  of  Commons  (sec.  17) ;  but  when  it  comes  to  define 
the  Legislature  of  the  Province  we  find  it  "consisting  of 
the  Lieutenant-Governor  and  of  one  House"  (or  two 
Houses  in  the  case  of  Quebec).  It  has  been  questioned 
whether  the  King  is  part  of  the  Provincial  Legislature — 
indeed,  New  Brunswick  and  Prince  Edward  Island  have 
their  Statutes  read  "Be  it  enacted  by  the  Lieutenant- 
Governor  and  Legislative  Assembly  as  follows,"  etc. 
Ontario,  Manitoba,  British  Columbia,  Alberta  and  Sas- 
katchewan use  the  terminology,  "His  Majesty  by  and  with 
the  advice  and  consent  of  the  Legislative  Assembly  of  the 
Province  of  Ontario  (or  as  the  case  may  be)  enacts  as 
follows,"  etc.  Quebec  and  Nova  Scotia  use  the  same  ter- 
minology but  add  the  Legislative  Council. 

The  point  is  of  no  practical  importance — the  Lieutenant- 
Governor  represents  the  King  in  his  Province. 


NOTES  TO  LECTURE  II  85 

33  Sections  91  and  92  read  as  follows: 

91.  It  shaU  be  lawful  for  the  Queen,  by  and  with  the 
advice  and  consent  of  the  Senate  and  House  of  Commons, 
to  make  laws  for  the  peace,  order,  and  good  government 
of  Canada,  in  relation  to  aU  matters  not  coming  within  the 
classes  of  subjects  by  this  Act  assigned  exclusively  to  the 
Legislatures  of  the  Provinces;  and  for  greater  certainty, 
but  not  so  as  to  restrict  the  generality  of  the  foregoing 
terms  of  this  section,  it  is  hereby  declared  that  (notwith- 
standing anything  in  this  Act)  the  exclusive  legislative 
authority  of  the  Parliament  of  Canada  extends  to  all 
matters  coming  within  the  classes  of  subjects  next  here- 
inafter enumerated;  that  is  to  say: 

1.  The  Public  Debt  and  Property. 

2.  The  regulation  of  Trade  and  Commerce. 

3.  The  raising  of  money  by  any  mode  or  system  of 
Taxation. 

4.  The  borrowing  of  money  on  the  public  credit. 

5.  Postal  service. 

6.  The  Census  and  Statistics. 

7.  Militia,  Military  and  Naval  Service,  and  Defence. 

8.  The  fixing  of  and  providing  for  the  salaries  and 
allowances  of  civil  and  other  oflBcers  of  the  Government  of 
Canada. 

9.  Beacons,  Buoys,  Lighthouses,  and  Sable  Island. 

10.  Navigation  and  Shipping. 

11.  Quarantine  and  the  establishment  and  maintenance 
of  Marine  Hospitals. 

12.  Sea  coast  and  inland  Fisheries. 

13.  Ferries  between  a  Province  and  any  British  or 
Foreign  country  or  between  two  Provinces. 

14.  Currency  and  Coinage. 

15.  Banking,  incorporation  of  banks,  and  the  issue  of 
paper  money. 

16.  Savings'  Banks. 

17.  Weights  and  Measures. 


86  CONSTITUTION  OF  CANADA 

18.  Bills  of  Exchange  and  Promissory  Notes. 

19.  Interest. 

20.  Legal  tender. 

21.  Bankruptcy  and  Insolvency, 

22.  Patents  of  invention  and  discovery. 

23.  Copyrights. 

24.  Indians,  and  lands  reserved  for  the  Indians. 

25.  Naturalisation  and  Aliens. 

26.  Marriage  and  Divorce. 

27.  The  Criminal  Law,  except  the  Constitution  of 
Courts  of  Criminal  Jurisdiction,  but  including  the  Pro- 
cedure in  Criminal  Matters. 

28.  The  Establishment,  Maintenance,  and  Management 
of  Penitentiaries. 

29.  Such  classes  of  subjects  as  are  expressly  excepted 
in  the  enumeration  of  the  classes  of  subjects  by  this  Act 
assigned  exclusively  to  the  Legislatures  of  the  Provinces. 
And  any  matter  coming  within  any  of  the  classes  of  sub- 
jects enumerated  in  this  section  shall  not  be  deemed  to 
come  within  the  class  of  matters  of  a  local  or  private  nature 
comprised  in  the  enumeration  of  the  classes  of  subjects  by 
this  Act  assigned  exclusively  to  the  Legislatures  of  the 
Provinces. 

92.  In  each  Province  the  Legislature  may  exclusively 
make  laws  in  relation  to  matters  coming  within  the  classes 
of  subjects  next  hereinafter  enumerated,  that  is  to  say, — 

1.  The  Amendment  from  time  to  time,  notwithstanding 
anything  in  this  Act,  of  the  Constitution  of  the  Province, 
except  as  regards  the  office  of  Lieutenant-Governor. 

2.  Direct  Taxation  within  the  Province  in  order  to  the 
raising  of  a  Revenue  for  Provincial  purposes. 

3.  The  borrowing  of  money  on  the  sole  credit  of  the 
Province. 

4.  The  establishment  and  tenure  of  Provincial  offices 
and  the  appointment  and  payment  of  Provincial  officers. 


NOTES  TO  LECTURE  II  87 

5.  The  Management  and  Sale  of  the  Public  Lands 
belonging  to  the  Province  and  of  the  timber  and  wood 
thereon. 

6.  The  Establishment,  Maintenance,  and  Management 
of  Public  and  Reformatory  Prisons  in  and  for  the  Province. 

7.  The  Establishment,  Maintenance,  and  Management 
of  Hospitals,  Asylums,  Charities,  and  Eleemosynary 
Institutions  in  and  for  the  Province,  other  than  Marine 
Hospitals. 

8.  Municipal  Institutions  in  the  Province. 

9.  Shop,  Saloon,  Tavern,  Auctioneer,  and  other 
Licences  in  order  to  the  raising  of  a  Revenue  for  Provin- 
cial, local,  or  municipal  purposes. 

10.  Local  Works  and  Undertakings  other  than  such  as 
are  of  the  following  classes, — 

a.  Lines  of  Steam  or  other  Ships,  Railways,  Canals, 
Telegraphs,  and  other  works  and  undertakings  connecting 
the  Province  with  any  other  or  others  of  the  Provinces,  or 
extending  beyond  the  limits  of  the  Province: 

b.  Lines  of  Steam  Ships  between  the  Province  and  any 
British  or  Foreign  Country: 

c.  Such  works  as,  although  whoUy  situate  within  the 
Province,  are  before  or  after  their  execution  declared  by 
the  Parliament  of  Canada  to  be  for  the  general  advantage 
of  Canada  or  for  the  advantage  of  two  or  more  of  the 
Provinces. 

11.  The  Incorporation  of  Companies  with  Provincial 
objects. 

12.  The  Solemnisation  of  Marriage  in  the  Province. 

13.  Property  and  Civil  Rights  in  the  Province. 

14.  The  Administration  of  Justice  in  the  Province, 
including  the  Constitution,  Maintenance,  and  Organisation 
of  Provincial  Courts,  both  of  Civil  and  of  Criminal  Juris- 
diction, and  including  Procedure  in  Civil  Matters  in  those 
Courts. 

15.  The  imposition  of  punishment  by  fine,  penalty,  or 


88  CONSTITUTION  OF  CANADA 

imprisonment  for  enforcing  any  law  of  the  Province  made 
in  relation  to  any  matter  coming  within  any  of  the  classes 
of  subjects  enumerated  in  this  section. 

16.  Generally  aU  matters  of  a  merely  local  or  private 
nature  in  the  Province. 

34  The  Roman  Catholic  minority  in  Ontario  and  the 
Protestant  minority  in  Quebec  had  the  right  to  Separate 
or  Denominational  Schools — the  Provinces  were  forbidden 
to  take  away  or  prejudicially  aflfect  these  rights. 

35  Although  aU  Judges  are  appointed  by  the  Dominion, 
the  constitution  of  the  Courts  (including  Courts  of  Crimi- 
nal Jurisdiction)  lies  with  the  Province — the  Province  may 
erect,  abolish  or  modify  any  Court,  civil  or  criminal. 
Justices  of  the  Peace  are  appointed  by  the  Local  Admin- 
istration but  they  do  not  try  civU  actions:  every  civil  dis- 
pute of  however  small  dimensions  must  in  our  system  be 
tried  by  a  Barrister  of  some  years'  standing  at  his  Bar  and 
appointed  for  life. 


LECTURE  III 

THE   CONSTITUTION   IN   ITS   ACTUAL 
WORKING 

The  written  Constitution  as  it  has  been  dis- 
played in  the  last  Lecture  would  seem  wholly  to 
justify  the  pity  and  sympathy  so  freely  shown 
us  by  some  of  our  friends  south  of  the  Inter- 
national line/ 

A  King  across  the  sea  ruling  by  the  Grace  of 
God  and  with  power  not  only  to  appoint  the 
Governor-General  but  also  to  disallow  any  legis- 
lation the  Dominion  Parliament  may  pass — that 
Governor-General  (not  responsible  to  the  people 
of  Canada),  with  power  to  appoint  the  whole  of 
one  of  the  Houses  of  Parliament,  to  refuse  to 
approve  of  any  legislation  he  sees  fit,  to  appoint 
a  Privy  Council  to  advise  him  in  the  government 
of  the  Dominion,  to  appoint  all  the  Judges  and 
Civil  Servants,  to  dissolve  Parliament  and  while 
it  is  In  session  to  direct  it  as  to  what  it  may  vote 
money  for — and  generally  to  act  the  autocrat. 
Why,  Canada  could  not  refuse  to  pay  his  salary 
of  £10,000  or  even  cut  it  down ! 


90  CONSTITUTION  OF  CANADA 

Then  in  the  Provinces,  the  Lieutenant- 
Governor  himself  appointed  and  removable  by 
the  Governor-General,  an  autocrat  in  Provincial 
where  the  Governor-General  is  in  Dominion  mat- 
ters ;  and  the  Legislature  holding  by  the  will  of 
the  Lieutenant-Governor  while  ostensibly  granted 
power  of  legislation  in  certain  matters  is  subject 
to  have  its  legislation  reviewed  and  disallowed  by 
the  Governor-General  at  Ottawa. 

What  an  intolerable  situation !  No  citizen  of 
an  American  State  would  consent  to  the  appoint- 
ment of  a  Governor  of  his  State  by  Woodrow 
Wilson ;  any  American  would  be  indignant  if  the 
President  of  the  United  States  were  to  assume 
to  review  and  disallow  State  legislation. 

But  we  are  not  filled  with  discontent  though  we 
have  the  same  feeling  as  respects  personal  free- 
dom and  political  independence  as  Americans. 

The  reason  is  to  be  found  in  the  Constitution 
(using  the  word  in  the  English  sense)  which  we 
apply  to  the  Constitution  (using  the  word  in  the 
American  sense). 

The  King  is  a  constitutional  monarch  reigning 
by  virtue  of  an  Act  of  Parliament,  who  leaves 
ruling  to  those  whose  constitutional  duty  it  is — 
the  Ministry  responsible  to  the  people  of  the 
British  Isles.  That  Ministry  has  long  ceased  to 
interfere   with   Canadian   affairs    and   would   not 


IN  ITS  ACTUAL  WORKING  91 

think  of  directing  or  even  advising  the  people  of 
Canada  or  its  Ministry  what  to  do  or  to  leave 
undone. 

Pains  are  taken  that  a  Governor-General  to 
be  appointed  is  acceptable  to  the  Canadians  ;^ 
and  those  who  are  appointed  know  well  what  is 
expected  of  them.^ 

Like  the  King,  the  Governor-General  leaves  all 
the  ruling  in  the  hands  of  his  Ministry — like  the 
King,  he  must  find  a  Ministry  which  will  become 
responsible  for  his  Acts — if  it  should  ever  happen 
that  a  Governor-General  acted  on  his  own  respon- 
sibility and  could  not  find  a  Ministry  to  take  the 
responsibility,  he  could  not  remain,  his  usefulness 
would  be  gone. 

Accordingly,  what  is  said  to  be  done  by  the 
Governor-General  is  in  fact  the  act  of  the 
Ministry,  having  the  confidence  for  the  time  being 
of  the  House  of  Commons  elected  by  the  people 
of  Canada.  Mutatis  mutandis,  the  same  state- 
ments apply  to  the  Lieutenant-Governor. 

What  is  the  Ministry?  The  word  does  not 
occur  in  the  British  North  America  Act  but  every 
one  knows  what  is  meant. 

In  Canada  the  Party  System  is  in  full  vigour* 
and  for  very  many  years  there  have  been  but  two 
political  parties.^  By  a  more  or  less  informal 
method,   perhaps    a   caucus    of   the   Members    of 


92  CONSTITUTION  OF  CANADA 

Parliament  of  the  party/  a  Leader  of  the  Opposi- 
tion is  selected — when  in  course  of  time,  that 
party  obtains  a  majority  in  the  House  of  Com- 
mons, the  existing  Ministry  resigns,^  and  the 
Governor-General  sends  for  the  Leader  of  the 
Opposition.*  That  gentleman  sets  out  to  form 
a  Ministry.  All  Ministers  of  the  Crown  must  be 
members  of  one  of  the  Houses  of  Parliament. 

If  the  Leader  of  the  Opposition  finds  that  he 
cannot  obtain  Ministers  to  aid  him  in  his  admin- 
istration of  the  affairs  of  the  country,  he  declines 
the  task  of  forming  a  Ministry,  and  another  must 
be  sent  for — perhaps  the  former  Prime  Minister — 
until  some  one  is  procured  who  can  form  a 
Ministry  with  which  he  will  undertake  to  carry 
on  the  affairs  of  the  country — he  is  Prime 
Minister  or  Premier.  He  may  not  be  satisfied 
with  the  existing  House  of  Commons,  in  that  case 
he  demands  and  obtains  a  new  election. 

Whenever  there  is  a  Prime  Minister  with  a 
majority  in  the  House  of  Commons,  the  Govern- 
ment can  go  on,  but  not  otherwise  normally. 

To  give  the  people  a  chance  to  express  an 
opinion  on  the  merits  of  any  proposed  Minister, 
he  must,  if  a  member  of  the  House  of  Commons, 
on  accepting  an  office  with  salary  attached,  go 
back  for  re-election;^  if  a  Senator  of  course  he 
passes  no  such  ordeal. 


IN  ITS  ACTUAL  WORKING  93 

The  difference  between  the  Prime  Minister  and 
any  other  Minister  is  that  when  they  cannot 
agree  and  one  must  resign,  it  is  that  other  and 
not  the  Prime  Minister  who  does  it. 

All  the  Ministers  are  sworn  of  the  Privy 
Council,  the  only  body  known  to  the  written 
Constitution. 

Most  of  the  Ministers  are  placed  in  charge  of 
a  Department  with  a  salary  attached. ^°  Some, 
however,  may  be  "Ministers  without  Portfolio" 
and  without  salary. 

There  is  a  body  quite  unknown  to  the  written 
Constitution,  i.e.,  "The  Cabinet" ;  this  consists  of 
the  Prime  Minister  and  such  of  the  members 
of  the  Privy  Council  as  he  may  choose,  in  Canada 
generally  all  the  Ministers — so  that,  speaking 
broadly,  the  Cabinet  and  the  Ministry  are  the 
same.^^ 

The  Privy  Council  never  meets  as  a  body^"  since 
it  contains  the  members  of  former  administra- 
tions— but  the  Cabinet  is  considered  to  consist 
of  such  of  the  Privy  Councillors  (who  are  members 
of  Parliament)  as  best  and  most  efficiently  repre- 
sent the  views  and  policies  of  the  dominant 
political  party,  i.e.,  the  party  which  has  a  ma- 
jority in  the  House  of  Commons. ^^ 

It  is  that  part  of  the  Privy  Council  called 
the  Cabinet  which   advises   His  Excellency — His 


94  CONSTITUTION  OF  CANADA 

Excellency  in  fact  signs  the  papers  placed  before 
him.    He  may  advise  but  he  cannot  command. 

What  has  been  said  of  the  Governor-General 
applies  mutatis  mutandis  to  the  Lieutenant- 
Governor. 

As  has  been  said,  any  act  ostensibly  of  either 
is  the  act  of  an  Administration  responsible  to  the 
people's  representatives  in  the  popular  House. 

It  may  be  that  the  Governor  is  not  satisfied 
with  his  Ministry;  he  may  dismiss  them,  but  if 
he  does  he  must  find  another  Ministry  to  take  the 
responsibility  of  his  act — there  have  been  no  dis- 
missals of  this  kind  in  Dominion  politics,  but  there 
have  been  instances  in  the  Provincial  arena.^* 
Moreover,  where  a  Lieutenant-Governor  acts  in 
this  way  he  is  responsible  to  the  Governor- 
General  and  the  Governor-General  may  remove 
him  on  the  advice  of  his  Ministers,  the  Dominion 
Cabinet. 

There  have  been  several  instances  of  Lieutenant- 
Governors  compelling  Local  Administrations  to 
have  enquiries  made  by  Royal  Commissions ; 
sometimes  the  investigations  so  made  have  been 
fatal  to  the  Government  who  either  resigned  or 
were  defeated  at  the  succeeding  election.^^ 

But  all  these  are  abnormal ;  nothing  of  the  kind 
has  ever  taken  place  in  Ontario  (for  example) — 
the  normal  course  is  for  the  Lieutenant-Governor 


IN  ITS  ACTUAL  WORKING  95 

to  take  the  advice  of  his  Ministers,  though  enough 
has  been  said  to  show  that  he  is  not  a  mere  roi 
faineant. 

Members  of  the  Senate  are  appointed,  in  fact, 
by  the  Administration  and  are  in  all  instances 
members  of  the  dominant  political  party^'^  al- 
though they  may  not  have  been  active  politicians. 

The  provision  permitting  the  Sovereign  on  the 
recommendation  of  the  Governor-General  to  add 
three  or  six  (hereafter  four  or  eight)  persons  to 
the  Senate  was  introduced,  of  course,  to  enable 
a  deadlock  to  be  broken — as  Peers  are  created  in 
England.  This  power  has  never  been  exercised, 
and  only  once  recommended;^^  the  Home  Govern- 
ment will  not  interfere  in  Canadian  politics  and 
it  recognises  that  the  power  is  only  to  be  exercised 
(if  ever)  when  it  is  absolutely  necessary  for  the 
purpose  of  bringing  the  Senate  into  accord  with 
the  popular  House,  in  the  event  of  an  actual 
collision  of  a  serious  and  permanent  character. 

The  provision  that  every  bill  for  appropriating 
any  part  of  the  public  revenue  or  for  imposing 
any  tax  or  import  must  originate  in  the  House 
of  Commons  is,  of  course,  intended  to  crystallise 
the  constitutional  practice  at  Westminster  and 
to  make  it  plain  that  the  people  hold  the  purse- 
strings  ;  while  that  which  prevents  the  House 
passing   any  such  bill  unless   it   shall  first   have 


96  CONSTITUTION  OF  CANADA 

been  recommended  by  message  from  the  Governor- 
General  emphasises  the  responsibility  of  the 
Ministry  of  the  day  for  the  expenditure  of  every 
dollar  of  public  money /^ 

What  is  done  is  this :  each  Minister  prepares 
(or  has  prepared  for  him  by  his  permanent 
officers)  an  estimate  of  the  expenditures  required 
for  the  coming  year;  these  are  all  examined  in 
Council  especially  by  the  Finance  Minister  who 
has  to  provide  the  money — for  Governments  like 
all  others  must  cut  their  coat  according  to  their 
cloth — and  the  whole  Administration  must  assume 
liability  for  every  estimate  and  every  item  in  it, 
there  being  no  such  thing  as  divided  responsibility. 

The  estimates  are  submitted  by  the  Minister 
whose  estimates  they  are,  at  a  convenient  time 
early  in  the  Session,  to  the  House  of  Commons 
with  a  formal  message  from  His  Excellency. 

Before  discussing  the  division  of  legislative 
power  between  Dominion  and  Provinces,  it  may 
be  well  to  consider  briefly  the  power  of  dis- 
allowance. 

When  a  bill  has  passed  both  Houses  of  Parlia- 
ment it  is  presented  to  the  Governor-General  for 
the  Royal  assent;  he  may  give  the  Assent  at  once 
and  in  the  vast  majority  of  cases  he  does  so, 
acting  on  the  advice  of  his  Ministry  for,  of  course, 
the    bill    could    not    have    passed    the    House    of 


IN  ITS  ACTUAL  WORKING  97 

Commons  without  the  approval  of  the  Ministry 
expressed  or  implied.  If  the  assent  is  given,  the 
bill  is  sent  to  the  Home  Administration  and  there 
examined;  if  found  unobjectionable  from  an 
Imperial  point  of  view,  no  more  is  said  of  it. 

The  bill  may,  however,  be  found  to  contain 
provisions  thought  not  to  be  wholly  consistent 
with  the  good  of  the  Empire  and  it  may  be  dis- 
allowed at  any  time  within  two  years — one  bill 
has  been  thus  disallowed  but  on  the  ground  that 
it  was  ultra  vires^^  ("unconstitutional"  in  the 
American  sense). 

The  usual  course,  however,  is  for  the  Imperial 
Government  to  communicate  with  the  Canadian 
Government  to  explain  fully  the  objectionable 
features,  and  then  the  Canadian  Parliament  at 
the  next  session  heals  the  defects. 

In  theory,  the  Governor-General  may,  as  in 
theory  the  King  may,  refuse  the  Royal  assent — 
he  never  does  in  fact ;  if  he  has  any  doubts  he  may 
reserve  the  bill  for  His  Majesty's  pleasure.  One 
such  bill  has  been  refused  the  Royal  assent  at 
Westminster,^"  all  others  have  been  assented  to. 

In  Provincial  matters  the  Lieutenant-Governor 
has  always  acted  upon  the  advice  of  his  Ministers 
and  has  never  assumed  to  act  on  his  own  judg- 
ment in  cases  in  which  the  question  of  disallow- 
ance of  legislation  has  arisen. 


98  CONSTITUTION  OF  CANADA 

For  some  time  after  Federation,  it  was  the 
theory  at  Ottawa  that  the  Local  Parliaments  were 
somewhat  on  a  par  with  Municipal  Councils — 
"A  big  County  Council"  was  the  favourite  way  of 
expressing  the  thought.  There  were  many  cases 
of  disallowance  where  the  Dominion  and  the 
Provincial  Governments  were  of  different  politics, 
some  which  can  hardly  justify  themselves  at  the 
bar  of  history ;  about  seventy  Provincial  Statutes 
have  been  disallowed  by  the  Dominion.  But  for 
several  years  the  practice  has  been  settled  for  the 
Dominion  not  to  interfere  except  where  the  legis- 
lation is  plainly  ultra  vires  the  Provincial  Par- 
liament. It  has  been  thought  that  the  people  of 
each  Province  are  the  best  judges  of  the  laws 
they  are  to  be  governed  by;  if  they  do  not  ap- 
prove of  any  legislation,  they  have  the  remedy  in 
their  own  hands.  We  have  Home  [Rule  fully 
developed. 

We  come  now  to  the  division  of  legislative 
power. 

The  whole  domain  of  legislation,  civil  and 
criminal,  is  covered  by  either  Dominion  or  Prov- 
ince, i.e.,  so  far  as  it  affects  Canada :  Canada  has 
not,  like  Britain,  extra-territorial  power. ^^ 

Again,  the  Dominion  Parliament  and  the  Local 
Legislatures  have  (within  the  ambit  of  their  juris- 


IN  ITS  ACTUAL  WORKING  99 

diction)  the  same  full  and  ample  power  which  the 
Imperial  Parliament  has. 

The  powers  of  the  Legislature  of  the  Province  are 
the  same  in  intension,  though  not  in  extension  as 
those  of  the  Imperial  Parliament.  The  Legislature 
is  limited  in  the  territory  in  which  it  may  legislate 
and  in  the  subjects:  the  Imperial  Parliament  is  not — 
that  is  the  whole  difference.  .  .  .  The  power  and 
jurisdiction  of  Parliament  is  so  transcendent  and 
absolute  that  it  cannot  be  confined  either  for  causes 
or  persons  within  any  bounds.  ...  It  is  a  funda- 
mental principle  with  English  lawyers  that  Parlia- 
ment can  do  everything  but  make  a  woman  a  man 
and  a  man  a  woman.  .  .  .  An  Act  of  Parliament  can 
do  no  wrong  though  it  may  do  several  things  that 
look  pretty  odd.-^ 

This  is  the  hardest  saying  for  many  Americans, 
whose  legislative  bodies  have  their  powers  cribb'd, 
cabined  and  confined  by  the  letter  of  the  Consti- 
tution of  the  United  States  or  of  the  particular 
State — they  are  horrified  to  hear  a  Court  say: 
"The  Legislature  within  its  jurisdiction  can  do 
everything  which  is  not  naturally  impossible,  and 
is  restrained  by  no  rule  human  or  divine.  .  .  . 
The  prohibition  'Thou  shalt  not  steal'  has  no 
legal  force  upon  the  sovereign  body,  and  there 
would  be  no  necessity  for  compensation  to  be 
given."" 


100  CONSTITUTION  OF  CANADA 

To  put  the  matter  in  a  sentence — the  people 
of  the  Dominion  keep  in  their  own  hands  the 
power  to  legislate  for  themselves  as  they  please; 
if  any  one  does  not  like  that  principle,  he  may 
stay  away  or  go  away  from  the  country. 

And  we  do  not  propose  to  be  bound  by  the  ideas 
of  a  past  generation;  no  Parliament,  Dominion 
or  Provincial,  can  bind  any  future  Parliament 
or  even  itself.^* 

But  while  we  do  not  allow  a  Court  to  set  aside 
legislation  as  unwise  or  unjust,  opposed  to 
natural  justice  or  what  not,  it  is  sometimes  neces- 
sary for  the  Courts  to  enquire  whether  particular 
legislation  of  Dominion  or  Province  comes  within 
the  ambit  of  the  powers  conferred  by  the  British 
North  America  Act.  We  have  seen  that  the 
Dominion  does  not  now  disallow  Provincial  Legis- 
lation unless  in  the  opinion  of  the  Dominion 
Government  it  is  ultra  vires  the  Province.  But 
even  if  allowed  by  the  Dominion  to  pass,  it  does 
not  always  follow  that  it  is  intra  vires — it  may  be 
called  in  question  by  a  private  litigant  and  then 
the  Court  is  bound  to  determine  whether  the 
Province  had  the  right  to  deal  with  the  subject- 
matter  of  the  litigation.  If  so  "arguments 
founded  on  alleged  hardship  or  injustice  can  have 
no  weight"  ;^^  if  not  the  legislation  is  void,  how- 
ever valuable  and  benevolent  it  may  be.^® 


IN  ITS  ACTUAL  WORKING  101 

Consideration  of  particular  instances  of  deter- 
mination of  jurisdiction  would  lead  us  here  too 
far  afield,  and  I  do  not  now  enter  upon  such  an 
enquiry. 

It  may  not  be  out  of  place  to  say  a  word  or 
two  concerning  the  practical  working  of  the 
bicameral  system  at  Ottawa. 

Because  peculiar  circumstances — perhaps  the  small 
size  of  the  Chapter  House  at  Westminster — brought 
about  two  Houses  of  Parliament  in  England,  the 
United  States,  the  Dominion  of  Canada,  all  the  States 
of  the  Union,  and  two  of  the  nine  provinces  of  the 
Dominion  have  two  Houses  in  their  Legislature;  and 
it  is  hard  to  convince  some  Americans  and  a  few 
Canadians  that  this  is  not  the  ideal  state  of  things. 
We  in  Ontario  have  got  along  for  nearly  fifty  years 
without  feeling  the  need  of  an  Upper  House;  but 
then,  of  course,  we  are  Radicals.  Whether  if  any 
one  were  set  to  it  to  frame  a  Constitution  for  a  people 
who  never  have  had  one,  he  would  erect  two  houses 
of  legislation  to  correct  each  other's  errors,  every  one 
must  decide  for  himself;  we  in  Ontario  want  none  of 
it  in  Ontario. ^^ 

In  the  Dominion  Parliament  (and  also  in  two 
of  the  Provinces)  there  are  two  Chambers  with 
sometimes  odd  results. 

In  the  old  Parliaments  of  the  Provinces  before 
Confederation,   particularly    in   early    times,    the 


102  CONSTITUTION  OF  CANADA 

two  Houses  had  many  quarrels,  generally,  how- 
ever, concerning  the  control  by  the  Lower  House 
over  the  money  of  the  Province,  which  really  is  the 
essence  of  Responsible  Government. 

But  the  principle  of  Responsible  Government 
being  firmly  established  by  the  time  of  Confed- 
eration, the  disputes  since  Confederation  have 
been  not  constitutional  but  (however  disguised) 
largely  political. 

Senators  are  appointed  by  the  Administration 
and  from  the  same  party — they  are  men  as  a  rule 
of  mature  years  and  their  rate  of  mortality  is 
rather  high  (although  it  is  said  that  the  Senate 
is  conducive  to  longevity  and  at  least  one  Senator 
of  Canada  died  over  a  hundred  years  of  age).^® 

The  result  is  that  if  an  Administration  remains 
long  in  power,  there  is  a  decided  preponderance 
in  the  Senate  of  members  of  that  political  party — 
and  the  majority  are  disposed  to  be  critical  of 
the  measures  of  a  Government  displacing  that  of 
their  own  party.  As  time  goes  by,  deaths  occur 
and  the  pendulum  swings  the  other  way :  the  result 
is  that  it  is  only  during  the  first  years  of  an 
Administration  that  the  Senate  is  to  be  feared,^* 
in  a  very  few  years  it  supports  the  Government. 

When  the  Senate  is  of  the  same  political  party 
as  the  Commons,  very  little  is  heard  of  a  move- 
ment to  abolish  or  amend  it:  when  it  is  trouble- 


IN  ITS  ACTUAL  WORKING  103 

some  by  refusing  to  carry  Government  measures, 
a  cry  is  raised  by  some  for  its  abolition  or  amend- 
ment, but  this  is  not  continuous  or  influential. 
While  there  are  a  few  who  consistently  urge  such 
a  scheme,  however  the  Senate  may  be  constituted, 
they  are  only  a  few:  in  most  cases,  it  is  the 
political  creed  of  the  voter  which  determines  his 
view  of  the  usefulness  of  this  second  Chamber — 
and  in  any  case  we  escape  the  undemocratic  result 
of  a  second  Chamber  being  always  of  one  political 
party.^" 

The  Legislative  Councils  in  the  two  Provinces 
which  still  retain  them,  are  of  little  consequence — 
they  have  the  same  opportunities  for  obstruction 
and  annoyance  to  an  incoming  Administration  as 
the  Senate  but  do  not  seem  to  have  taken  much 
advantage  of  them. 

No  Province  with  only  one  Chamber  has  ever 
desired  two ;  while  at  least  one  of  those  with  two 
has  groaned  under  the  imposition.  Nor  has  there 
been  found  crudity  or  want  of  thought  more  in 
the  monocameral  than  in  the  bicameral  Provinces. 


NOTES  TO  LECTURE  III 

1  There  was  a  time  when  the  misunderstanding  by 
many  Americans  of  the  true  condition,  politically  and 
constitutionally,  of  Canada  and  Canadians  was  the  cause 
of  much  annoyance  and  exasperation;  but  we  have  learned 
better  and  now  it  rather  amuses. 

The  several  invasions  of  Canada  by  its  neighbours  from 
the  South  have  all  been  ostensibly  to  free  Canadians  from 
bondage,  and  nothing  could  exceed  the  astonishment  of  the 
would-be  deliverers  at  the  want  of  appreciation  and  grati- 
tude on  the  part  of  the  slaves  they  had  come  to  set  free. 

Arnold  and  Montgomery  in  1775-1776  were  as  benevolent 
in  their  intentions  as  HuU  in  1812.  HuU  in  his  Proclama- 
tion (said  to  have  been  written  by  Lewis  Cass  and  certainly 
approved  by  him)  told  the  Canadians:  "I  come  to  protect 
not  to  injure  you.  .  .  ,  The  arrival  of  an  army  of  friends 
must  be  hailed  by  you  with  a  cordial  welcome.  You  will 
be  emancipated  from  tyranny  and  oppression  and  restored 
to  the  dignified  station  of  freemen."  After  that,  who  can 
be  so  suspicious  as  to  attribute  the  invasion  of  Canada 
to  the  schemes  of  conquest  of  Henry  Clay  and  his  War 
Hawks? 

General  Thomas  Jefferson  Sutherland  at  the  head  of  an 
army  of  American  "Sympathisers"  in  1838  addressed  the 
unhappy  Canadians  thus:  "You  are  called  upon  by  the 
voice  of  your  bleeding  country  to  join  the  Patriot  forces 
and  free  your  land  from  tyranny.  Hordes  of  worthless 
parasites  of  the  British  Crown  are  quartered  upon  you  to 
devour  your  substance — to  outrage  your  rights — to  let 
loose  upon  your  defenceless  wives  and  daughters  a  brutal 
soldiery.  Rally  then,  around  the  standard  of  liberty  and 
victory  and  a  glorious  future  of  independence  will  be 
yours."      And   there   is    nothing   to   indicate   that   he   was 


NOTES  TO  LECTURE  III  105 

not  perfectly  sincere.  Even  the  Fenians  in  1866  express 
their  desire  to  set  Canada  free  from  British  tyranny. 

On  every  occasion  of  invasion  there  was  the  intention 
to  raise  the  victims  of  monarchical  oppression  to  the 
glorious  height  of  freedom  assured  by  American  citizen- 
ship: and  on  every  occasion  Canadians  resisted  to  the  death. 

"Who  would  be  free  themselves  must  strike  the  blow." 

2  The  list  of  Governors-General  includes  the  names  of 
Viscount  Monck,  Lord  Dufferin,  the  Marquis  of  Lome 
(afterwards  Duke  of  Argyle,  son-in-law  of  Queen  Victoria), 
the  Marquis  of  Lansdowne,  Lord  Minto,  Lord  Stanley  of 
Preston  (afterwards  Earl  Derby),  the  Earl  of  Aberdeen, 
the  Duke  of  Connaught  (the  son  of  Queen  Victoria  and 
uncle  of  the  present  King),  and  the  Duke  of  Devonshire. 

3  As  indicating  that  many  of  the  English  people  do  not 
understand  the  true  position  of  the  Governor-General, 
reference  may  be  made  to  the  remarks  of  an  English  news- 
paper when  the  present  incumbent  was  appointed,  that 
"the  Duke  of  Devonshire  had  all  the  qualifications  for  ruling 
a  colony."  No  Governor-General  or  Lieutenant-Governor 
rules  in  Canada. 

*  It  may  seem  strange  to  say  that  the  Party  system  is 
much  more  developed  and  mature  in  Canada  than  in  the 
United  States:  but  I  venture  to  assert  that  that  is  true. 
In  Canada,  every  great  measure  is  the  work  of  one  or 
other  party  (I  except  what  is  done  in  time  of  war  when 
all  rules  are  disregarded).  If  it  be  said  that  the  same  is 
the  case  in  the  L^nited  States,  I  ask  what  Party  is  respon- 
sible for  Mr.  Taft's  proposed  reciprocity  measure?  for  the 
Spanish  War?  for  the  recent  "filibuster"? 

5  Third  parties  have  so  far  not  been  of  much  moment 
in  Canada — the  most  promising  of  them  were  perhaps 
(1)  the  "Equal  Rights  Party"  which  came  into  existence 
as  a  protest  against  the  Province  of  Quebec  being  permitted 
to  pay  to  the  Jesuits  a  certain  amount  of  money  for  their 
estates   confiscated   after   the   Conquest   in   1759-1760 — this 


106  CONSTITUTION  OF  CANADA 

was  a  Dominion  Party  which  thought  that  the  Provincial 
Statute  awarding  the  Jesuits  compensation  should  have  been 
disallowed;  (2)  the  "Grangers,"  rather  a  Provincial  party 
in  Ontario  with  somewhat  indefinite  views  as  to  the  rights 
of  the  farming  community.  These  parties  are  now  prac- 
tically if  not  wholly  defunct.  No  such  spectacle  was  ever 
exhibited  in  Canada  as  that  presented  at  the  Presidential 
Election  in  the  United  States  in  1912  and  many  previous 
elections. 

6  This  was  the  method  in  which  (Sir)  Wilfrid  Laurier 
was  selected  as  leader  of  the  Reform  (Grit)  Party  in  1887, 
and  (Sir)  Robert  Borden,  leader  of  the  Conservative 
(Tory)  Party  in  1901.  The  present  leader  of  the  Opposi- 
tion in  Ontario  was  elected  at  a  convention  of  the  Reform 
Party. 

7  The  Government  sometimes  instead  of  resigning  ad- 
vises the  Governor-General  to  dissolve  Parliament;  he  may 
assent  and  if  the  party  in  power  can  obtain  a  majority  in 
the  new  House  of  Commons  it  retains  the  seals  of  office: 
if  it  be  defeated  it  must  resign.  The  present  practice  is 
for  the  Government  to  resign  as  soon  as  it  is  certain  that 
it  is  defeated  at  an  election;  but  it  cannot  yet  be  called 
unconstitutional  for  the  defeated  Government  to  hold  office 
tiU  it  is  voted  down  in  the  House  of  Commons. 

If  the  Governor-General  refuse  to  allow  a  new  election, 
he  must  find  some  Ministry  which  wUl  assume  the  respon- 
sibility for  such  refusal — this  he  does  by  sending  for  the 
Leader  of  the  Opposition,  and  in  most  instances  he  will 
demand  and  be  granted  an  election. 

8  There  is  no  such  body  as  "the  Opposition"  known  in 
the  written  Constitution  and  no  such  person  as  "the  Leader 
of  the  Opposition":  but  everybody  knows  them,  and  the 
Leader  of  the  Opposition  at  Ottawa  is  paid  a  salary  of 
$7,000  by  the  country— R.  S.  Can.  (1906),  c.  10,  s.  39— in 
addition  to  the  sessional  allowance  of  $2,500  given  to  all 
Members  of  Parliament— R.  S.  Can.  (1906),  c.  10,  s.  37. 


NOTES  TO  LECTURE  III  107 

This  affords  a  not  very  remote  analogy  with  the  Advo- 
catus  Diaboli  in  Courts  which  are  to  pass  upon  the  pro- 
posed canonisation  of  a  saint — and  to  the  employment  and 
payment  by  the  State  of  Counsel  for  an  accused  upon  his 
trial. 

9  It  is  not  unusual  for  the  Opposition  to  allow  a  Minister 
to  be  returned  by  acclamation:  but  this  is  by  no  means 
universally  the  case,  and,  speaking  generally,  it  may  be 
said  that  the  Minister  is  opposed  when  there  is  good  chance 
of  defeating  him. 

10  At  present  $7,000  (except  the  President  of  the  Privy 
Council,  the  Prime  Minister,  Sir  Robert  Borden,  who  re- 
ceives $12,000). 

11  This  is  not  necessarily  the  case:  till  a  short  time  ago 
the  Solicitor-General  was  not  a  member  of  the  Cabinet: 
in  the  British  Isles  it  is  the  normal  condition  that  several 
Ministers  are  excluded  from  the  Cabinet. 

12  In  England  the  Privy  Council  meets  as  a  body  only 
on  the  demise  of  the  Crown:  in  Canada,  not  even  on  that 
event. 

13  At  present  there  are  eighteen  members  of  the  Cabinet : 
(1)  Sir  Robert  Borden,  President  of  the  Privy  Council; 
the  Ministers  (2)  of  Trade  and  Commerce;  (3)  of  Public 
Works;  (4)  of  Railways  and  Canals;  (5)  of  Finance; 
(6)  of  Marine  and  Fisheries;  (7)  of  Justice;  (8)  of  Militia 
and  Defence;  (9)  of  the  Interior  and  of  Indian  Affairs; 
(10)  of  Labour;  (11)  of  Customs;  (12)  of  Agriculture; 
(13)  of  Inland  Revenue;  (14)  the  Postmaster-General; 
(15)  Secretary  of  State — these  are  aU  paid;  (16)  Solicitor- 
General  and  two  without  portfolio  (or  salary). 

14  His  Honour  Luc  Letellier  de  St.  Just,  Lieutenant- 
Governor  of  Quebec,  in  March,  1878,  dismissed  his  Ministers 
because  they  did  not  receive  with  due  consideration  his 
recommendations,  particularly  in  respect  of  a  biU  which  in 
his  opinion  would  deprive  Her  Majesty's  subjects  in  Quebec 
of  their  undoubted  right  to  the  protection  of  the  Courts  of 


108  CONSTITUTION  OF  CANADA 

Law.  He  sent  for  M.  H.  G.  (afterwards  Sir  Henri)  Joly, 
the  Leader  of  the  Opposition,  who  formed  a  Ministry  but 
could  not  carry  the  Legislative  Assembly  (he  was  defeated 
by  33  votes  to  13) ;  he  then  applied  for  and  obtained  a 
dissolution.  The  new  House  was  almost  evenly  divided, 
and  as  the  session  proceeded  the  Ministry  lost  strength  and 
the  Legislature  was  prorogued. 

The  existing  Dominion  Administration  was  of  the  same 
politics  as  Joly:  and  a  resolution  was  voted  down  in  the 
House  of  Commons  (though  it  carried  in  the  Senate)  which 
asserted  that  the  action  of  LeteUier  was  opposed  to  the 
principles  of  Constitutional  Government. 

The  next  Dominion  Parliament  saw  the  other  party 
returned  to  power,  the  resolution  was  passed  and  the 
Governor-General  was  advised  by  his  Ministry  that  "the 
usefulness  of  Mr.  LeteUier  as  Lieutenant-Governor  of 
Quebec  was  gone,"  and  he  was  removed. 

In  1891  an  investigation  by  a  Committee  of  the  Senate 
of  Canada  seemed  to  show  that  grave  irregularities  or  worse 
had  taken  place  in  the  dealings  of  the  Quebec  Government 
headed  by  M.  Honore  Mercier,  the  Lieutenant-Governor. 
His  Honour  A.  R.  Angers  insisted  on  the  matter  being 
investigated  by  a  Royal  Commission  of  three  judges,  the 
evidence  before  whom  developed  new  and  startling  facts. 
After  an  interim  report  by  two  of  the  judges  (the  third 
being  ill),  the  Lieutenant-Governor  dismissed  the  Ministry 
and  sent  for  de  Boucherville,  the  Leader  of  the  Opposition 
who  formed  a  new  Ministry.  An  election  demanded  by 
the  new  Administration  resulted  in  a  complete  victory,  as 
more  than  two-thirds  of  the  new  Assembly  were  supporters 
of  the  Government. 

15  Two  years  ago  in  Manitoba,  grave  charges  were  made 
of  frauds  in  public  buildings  being  erected  by  the  Prov- 
ince: no  sufficient  enquiry  could  be  made  by  the  House  as 
the  Government  had  there  a  considerable  majority:  the 
Lieutenant-Governor,  Sir  Douglas  Cameron,  insisted  on  the 


NOTES  TO  LECTURE  III  109 

appointment  of  a  Royal  Commission  to  investigate — the 
evidence  before  the  Royal  Commission  showed  over- 
payments to  the  contractor  with  the  knowledge  of  a 
Government  architect — the  Government  resigned  and  Mr. 
Norris,  the  Leader  of  the  Opposition,  was  sent  for:  he 
formed  a  Ministry  and  at  the  ensuing  election  was  over- 
whelmingly successful.  The  contractor,  Kelly,  was  con- 
victed and  sent  to  the  penitentiary;  the  jury  disagreed  as 
to  the  guilt  of  Sir  Rodmond  Roblin,  the  quondam  Prime 
Minister,  and  his  surviving  associates,  and  they  have  to  be 
tried  again. 

16  The  appointments  are  not  always  (though  frequently, 
indeed  generally)  made  for  political  services  rendered  or 
because  the  appointee  has  been  or  is  a  political  partisan — 
for  example,  Mr.  (afterwards  Sir)  James  Robert  Gowan, 
a  retired  County  Court  Judge,  was  appointed  in  1895  and 
proved  a  most  useful  Senator. 

Politics  run  as  strong  and  party  lines  are  as  closely 
drawn  in  Senate  as  in  House.  It  is  not  whoUy  without 
precedent  that  a  Senator  has  changed  to  the  dominant 
party:  but  it  cannot  be  said  that  he  increased  his  reputation 
by  the  change. 

1'  On  the  admission  of  British  Columbia  into  the 
Dominion,  it  had  been  agreed  that  the  Dominion  should 
build  a  transcontinental  railway  connecting  British  Col- 
umbia with  the  remainder  of  Canada,  work  to  begin  in  two 
years,  to  be  completed  in  ten.  On  the  defeat  of  the 
Macdonald  Administration  which  had  made  this  agreement, 
Alexander  Mackenzie  came  into  power  with  a  policy  to 
build  the  railway  more  slowly,  utilising  "the  water- 
stretches."  British  Columbia  was  insistent.  Mr.  (after- 
wards Sir)  James  D.  Edgar  went  out  as  agent  of  the 
new  Dominion  Government,  to  arrange  terms  of  compromise 
if  possible,  but  failed.  The  Dominion  Administration  hoped 
to  placate  the  angry  British  Columbians  by  building  in  their 
Province    a    railway    about    sixty-five    miles    long,    from 


no  CONSTITUTION  OF  CANADA 

Esquimau  to  Nanaimo:  the  House  of  Commons  passed  a 
bill  for  this  purpose  but  the  Senate  rejected  it — the  domi- 
nant party  in  the  Commons  was  the  Reform  (or  Grit) 
Party,  but  in  the  Senate  the  Conservatives  (or  Tories)  were 
in  the  majority. 

Mackenzie's  Government  made  an  application  to  Her 
Majesty  to  direct  that  six  members  should  be  added  to  the 
Senate  "in  the  public  interests":  but  though  it  was  not  so 
stated  in  the  application,  it  was  obvious  that  the  real  object 
was  to  overcome  the  adverse  majority  of  Conservatives  in 
the  Senate,  and  the  application  was  refused. 

The  British  Government  knows  better  than  to  assist 
one  Canadian  party  against  the  other — that  would  not  be 
constitutional  though  wholly  legal. 

18  Sections  53  and  54.  Sometimes  for  convenience  bills 
involving  public  expenditures  are  introduced  in  the  Senate: 
the  money  sections  are  printed  in  the  bill  so  as  to  make  it 
intelligible,  but  these  sections  are  always  struck  out  in 
Committee.  When  the  bill  is  sent  up  to  the  Commons, 
these  sections  are  in  red  ink  or  italics  and  supposed  to 
be  blank  and  inserted  in  the  Commons. 

While  by  Rule  of  the  House  of  Commons  copied  from 
the  celebrated  Rxde  passed  by  the  Imperial  House  of 
Commons,  July  30,  1878  (9  E.  Com.  J.  235,  509),  when  the 
House  of  Lords  rejected  the  Paper  Duties  Bill,  the  "aid 
and  supplies  granted  to  His  Majesty  .  .  .  are  the  sole  gift 
of  the  House  of  Commons  .  .  .  and  .  .  .  such  grants  .  .  . 
are  not  alterable  by  the  Senate,"  instances  have  been 
known,  not  many  in  number  and  "not  to  be  drawn  into  a 
precedent,"  that  an  amendment  in  the  Senate  has  been 
acquiesced  in  by  the  Commons — for  example,  when  such  a 
course  has  been  found  necessary  so  as  not  to  delay  the 
passage  of  a  bill  at  a  late  period  of  the  session. 

The  usual  course,  however,  is  to  give  the  Senate  an 
opportunity  of  withdrawing  its  unconstitutional  inter- 
ference. 


NOTES  TO  LECTURE  III  111 

19  In  May,  1873,  a  bill  which  had  been  passed  by  the 
Canadian  Parliament  to  provide  for  the  examination  on 
oath  of  witnesses  before  Parliamentary  Committees  in 
certain  cases,  was  transmitted  to  Westminster  with  a 
memorandum  by  the  Minister  of  Justice  expressing  doubts 
of  the  competency  of  the  Canadian  Parliament  to  pass  the 
biU.  The  Law  Officers  of  the  Crown  advised  Her  Majesty 
that  the  Act  was  ultra  vires  and  it  was  disallowed,  as  the 
Canadian  Government  had  in  effect  invited. 

20  In  the  first  session  of  the  first  Parliament  of  the 
Dominion,  a  bill  was  passed  for  reducing  the  salary  of  the 
Governor-General  from  £10,000  to  £6,500:  this  the 
Governor-General,  Viscount  Monck,  reserved  for  Her 
Majesty's  pleasure.  The  Secretary  of  State  for  the  Colonies 
notified  Lord  Monck  that  while  it  was  with  reluctance  and 
only  on  serious  occasions  that  the  Queen's  Government 
could  advise  Her  Majesty  to  refuse  assent  to  a  biU  passed 
by  the  Canadian  Parliament,  the  effect  of  this  bill  being 
to  reduce  the  Governor-General  to  the  third-class  of 
Colonial  Governors,  it  was  thought  it  should  not  become 
law. 

In  1869  the  Dominion  Parliament  fixed  the  salary  at 
£10,000  ($48,666.63). 

The  power  of  disallowance  by  the  Home  Government 
began  in  very  early  Colonial  times,  indeed  in  the  time  of 
the  government  of  colonies  by  Chartered  Companies.  The 
history  of  this  power  is  given  very  fully  in  an  Article, 
"The  Royal  Disallowance,"  by  Prof.  Charles  M.  Andrews 
of  Yale  University,  in  the  Proceedings  American  Anti- 
quarian Society,  October,  1914. 

There  is  also  a  valuable  discussion  in  a  publication  of 
the  Department  of  History,  etc..  Queen's  University,  Kings- 
ton, Ontario,  No.  22,  January,  1917,  "The  Royal  Disallow- 
ance in  Massachusetts,"  by  Prof.  A.  G.  Dorland  of  that 
University. 

21  For   example,   the   Imperial   Parliament    could    make 


112  CONSTITUTION  OF  CANADA 

it  a  crime  for  a  British  subject  to  go  to  the  top  of  Pike's 
Peak:  Canada  could  not:  but  she  could  make  it  a  crime 
for  any  one  to  go  to  the  top  of  (say)  the  Mountain  at 
Montreal. 

22  Language  of  my  own  in  giving  judgment  in  the  case 
of  Smith  V.  City  of  London,  (1909),  20  O.  L.  R.,  131  at  p. 
137. 

23  Language  of  my  own  in  giving  judgment  in  Florence 
V.  Cobalt,  (1908),  18  O.  L.  R.,  275  at  p.  279.  The  Florence 
Mining  Company  claimed  that  it  had  performed  aU  condi- 
tions precedent  to  entitle  it  to  the  ownership  of  a  valuable 
mining  claim,  but  the  Ontario  Government  sold  it  to  the 
Cobalt  Mining  Company,  and  the  Ontario  Legislature 
passed  an  Act  confirming  this  sale.  At  the  trial,  I  took  it 
as  proven  that  the  Florence  Company  had  owned  the  claim 
and  held  that  the  Legislature  had  the  power  to  take  it 
away  and  give  it  to  the  Cobalt  Company  without  compen- 
sation. This  decision  created  much  dismay  and  some 
indignation — Goldwin  Smith  was  especially  outraged  by 
it — but  it  was  a  mere  commonplace.  The  Court  of  Appeal 
for  Ontario  and  the  Judicial  Committee  of  the  Privy 
Council  both  confirmed  the  judgment:  both  based  their 
judgment  on  the  ground  that  the  Florence  Company  was 
not  entitled  to  the  claim,  but  both  expressly  approved  of 
the  law  as  I  had  laid  it  down. 

I  have  received  within  the  month  in  which  these  lines 
are  written,  a  letter  from  a  very  prominent  and  public- 
spirited  American  lawyer  in  which  he  asks  me  to  modify 
certain  remarks  made  at  the  recent  meeting  of  the  "Ameri- 
can Society  for  the  Judicial  Settlement  of  International 
Disputes"  on  this  subject;  and  he  adds: 

"My  principal  reason  for  the  request  is  this:  There  are 
in  this  country  some  men  in  the  courts  and  in  universities 
who  claim  that  exercise  of  the  power  to  declare  acts  of  the 
legislature  unconstitutional  or — as  your  courts  express  it — 
ultra  vires,  is  a  usurpation.     They  would  take  advantage 


NOTES  TO  LECTURE   III  113 

of  your  statement  to  fortify  their  argument,  and  without 
reference  to  what  you  afterwards  said  will  quote  you  as 
saying  that  the  Legislature  of  Canada  had  unrestricted 
power  and  was  not  bound  even  by  the  Ten  Commandments. 
You  would,  I  am  sure,  regret  that  you  should  furnish 
ammunition  for  their  mischievous  campaign." 

I  could  give  my  friend  no  comfort. 

2i  "The  Legislature  has  no  power  to  control  by  anticipa- 
tion the  actions  of  any  future  Legislature  or  of  itself." 
Smith  V.  City  of  London,  20  O.  L.  R.  at  p.  142. 

25  The  language  of  the  late  Sir  Charles  Moss,  Chief 
Justice  of  Ontario  (vaJde  deflendi),  in  Florence  v.  Cobalt, 
18  O.  L.  R.  at  p.  293. 

26  Where  the  question  is  raised  of  the  power  of  the 
Legislative  body.  Dominion  or  Provincial,  to  pass  a  Statute, 
our  Ontario  Courts  require  the  Attorneys-General  of  the 
Dominion  and  of  the  Province  to  be  notified  so  that  they 
can  be  heard  before  the  question  is  disposed  of. 

Moreover,  either  before  or  after  the  passing  of  legis- 
lation, the  Government  may  require  the  opinion  of  the 
Supreme  Court  of  Dominion  or  Province,  as  the  case  may 
be,  as  to  the  validity  of  such  legislation  proposed  or  actual. 
Counsel  are  appointed  and  paid  by  the  Government 
(usually)  to  argue  both  sides. 

2T  The  quotation  is  from  an  address  by  myself  delivered 
before  the  Wisconsin  State  Bar  Association  at  Green  Bay, 
Wise,  June  24,  1914, 

28  The  Honourable  David  Wark  from  Fredericton,  New 
Brunswick,  who,  born  in  1804,  was  a  member  of  the  Senate 
tiU  1905:  Sir  Mackenzie  Bowell  is  still  active  in  the  Senate 
in  his  ninety-fourth  year. 

29  The  first  Administration  in  Canada  was  the  Con- 
servative Administration  of  Sir  John  A.  Macdonald:  when 
that  was  defeated  in  1872,  the  incoming  Reform  Adminis- 
tration of  Alexander  Mackenzie  found  an  adverse  majority 


114  CONSTITUTION  OF  CANADA 

in  the  Senate.  As  at  first  constituted  in  1867,  it  was  fairly 
divided  between  the  political  parties,  but  Macdonald  had 
seen  to  it  that  Conservatives  were  appointed  to  vacancies. 
The  Senate  voted  down  the  Government  railway  scheme, 
and  the  Home  Administration  refused  to  add  members  to 
the  Senate. 

One  of  the  members  of  the  Government  proposed  that 
the  Provinces  should  elect  their  own  Senators,  and  that 
their  term  should  be  limited — the  House  was  not  in  favour 
of  abolishing  the  Senate  altogether,  and  nothing  had  been 
accomplished  when  Macdonald  came  into  power  again  in 
1878.  No  trouble  was  met  with  in  the  Senate  tiU  the  Con- 
servatives lost  power  in  1896;  in  the  first  session  of  the 
new  Administration  of  Sir  WUfrid  Laurier,  a  raUroad 
scheme  for  opening  up  the  Yukon  Territory  was  voted 
down  by  the  Conservative  majority  in  the  Senate,  and  the 
Senate  proved  troublesome  in  other  respects. 

But  time  heals  all;  Conservative  Senators  die  as  well 
as  Reformers — and  only  Reformers  were  appointed,  so  that 
when  Sir  Wilfrid  went  out  on  the  Reciprocity  policy  in 
1911,  the  Reformers  were  in  the  majority. 

Sir  Robert  Borden  who  succeeded  Sir  Wilfrid  had  his 
troubles  with  the  Reform  Senate  as  Sir  Wilfrid  had  with 
the  Conservative  Senate.  A  biU  to  give  ships  of  war  to  the 
Fleet  instead  of  Canada  building  and  owning  ships  herself 
was  voted  down;  additional  representation  in  the  Senate 
was  delayed  until  after  the  present  Parliament,  etc. 

But  death  has  not  been  idle — and  the  present  Govern- 
ment may,  when  it  wUl,  have  a  clear  majority  in  the  Senate. 

30  There  does  not  seem  to  be  a  real  movement  of  any 
importance  for  the  abolition  of  the  Senate.  Logically  it  is 
hard  to  find  an  excuse  for  its  existence,  but  we  are  not  a 
logical  people — if  an  institution  M^orks  well  or  even  does 
no  great  harm,  we  are  likely  to  leave  it  alone  whatever  we 
might  do  if  we  were  framing  an  entirely  new  scheme. 


NOTES  TO  LECTURE  III  115 

NOTE    ON    ADMINISTRATIONS    (SINCE    CONFED- 
ERATION)  IN  THE     DOMINION  OF  CANADA 
AND  THE  PROVINCE  OF  ONTARIO 

In  the  Domixion 

1.  The  two  political  parties  in  "the  Canadas"  (i.e.,  the 
United  Province  of  Canada,  composed  of  Upper  and  Lower 
Canada)  had  in  1864.  joined  hands  and  formed  a  Coalition 
Government  under  the  Premiership  of  Mr.  John  A.  Mac- 
donald,  for  the  purpose  of  bringing  about  a  Confederation 
of  British  America — this  Government  had  been  weakened 
in  1866  by  the  withdrawal  of  George  Brown,  the  most 
influential  and  powerful  of  the  leaders  of  the  Reform 
(Clear  Grit)  party.  But  others  of  that  party  remained 
in  the  Government — when  Confederation  became  a  fact,  a 
Reform  Party  Convention  in  Upper  Canada  condemned 
Coalition  (except  for  a  temporary  purpose),  but  neverthe- 
less these  gentlemen  accepted  the  invitation  of  Mr.  Mac- 
donald  to  join  his  Ministry  for  the  Dominion.  The  first 
election  resulted  in  favour  of  the  Coalition  Government, 
and  the  first  Prime  Minister  of  the  Dominion  (now  become 
Sir  John  A.  Macdonald)  had  a  large  majority  in  the  House 
of  Commons. 

Macdonald  had  made  his  way,  without  early  advantages, 
to  the  leadership  of  the  Conservative  Party  by  sheer  deter- 
mination joined  to  unrivalled  skill  in  political  management 
of  men  and  no  small  amount  of  intellectual  capacity. 
Alexander  Mackenzie,  who  had  been  a  working  stone-mason, 
speedily  established  himself  as  Leader  of  the  Opposition. 
While  the  form  of  a  Coalition  was  kept  up,  in  fact  the 
Administration  became  in  substance  Conservative. 

In  November,  1873,  the  House  of  Commons  passed  a 
vote  of  want  of  confidence  in  the  Ministry — they  had  been 
charged  with  receiving  large  sums  of  money  from  a 
contractor  for  election  purposes,  "the  Pacific  Scandal." 
The  Ministry  at  once  resigned.  Mackenzie  was  sent  for  by 
His  Excellency:  he  formed  a  Ministry,  and  in  January, 
1874,  went  to  the  country.  Since  the  defeat  of  Sir  John 
A.  Macdonald  there  has  never  been  any  pretence  of 
Coalition  or  non-party  government  in  the  Dominion. 

2.  At  the  general  election,  the  Reform  Party  obtained 
an  overwhelming  majority,  161  Members  in  a  House  of  205. 
But  Macdonald  remained  Leader  of  the  Conservative  Party, 
having  been  retained  by  a  caucus  of  his  followers,  and  at 


116  CONSTITUTION  OF  CANADA 

the  general  election  in  1878  that  party  obtained  a  majority, 
having  146  Members  in  a  House  of  206,  on  the  issue  of 
Protection,  "the  National  Policy,"  as  it  was  and  stiU  is 
called. 

Mackenzie  resigned  at  once  without  waiting  for  an 
adverse  vote  of  the  House;  Macdonald  was  sent  for  and 
formed  a  Ministry,  purely  Conservative. 

3.  Macdonald  remained  Prime  Minister  tiU  his  death, 
having  no  rival  in  the  affection  and  confidence  of  his  Party. 
Mackenzie,  AprU,  1880,  resigned  his  leadership  of  the 
Opposition  and  was  succeeded  by  Edward  Blake  (pre- 
viously Prime  Minister  of  Ontario  and  afterwards  a 
member  of  the  Imperial  House  of  Commons),  who  was 
elected  Leader  of  the  Opposition  at  a  caucus  of  the  Liberal 
Members  of  Parliament  much  against  his  own  desire,  it  is 
said.  Mr.  Blake  remained  Leader  of  the  Opposition  and 
led  the  Reform  forces  at  the  General  Elections  of  1882  and 
1887,  but  unsuccessfully.  His  health  gave  way  and  in  June, 
1887,  he  met  his  party  in  caucus  and  insisted  that  his 
resignation  should  be  accepted.  For  a  short  time  the 
leadership    was    "in    commission,"    but    June    7,    1887,    Mr. 

(now  Sir)  Wilfrid  Laurier  was  chosen  leader  by  the  party 
caucus:  he  has  ever  since  been  the  leader  of  the  Reform 
Party  whether  in  power  or  in  opposition. 

Sir  John  went  to  the  country  in  1891  and  succeeded  in 
obtaining  a  majority,  but  he  died  June  6  of  that  year. 

Mr.  (afterwards  Sir)  John  J.  C.  Abbott,  a  Senator  and 
a  member  of  the  Ministry  without  portfolio,  was  entrusted 
with  the  duty  of  forming  a  Ministry,  which  he  did  by 
continuing  his  colleagues  in  office  and  himself  becoming 
President  of  the  Council. 

4.  The  Abbott  Administration,  confessedly  a  stop-gap, 
lasted  tiU  November,  1892,  when  Abbott  resigned  and  Sir 
John  S.  D.  Thompson  became  Prime  Minister. 

5.  He  continued  such  till  his  death  at  Windsor  Castle 
in  1894.  Senator  Mackenzie  Bowell,  the  senior  Privy 
Councillor  and  Minister  of  Railways  in  the  Thompson 
Government,  succeeded  December,  1894. 

6.  Sir  Mackenzie's  Administration  had  many  dissen- 
sions; Ministers  deserted  their  chief  and  at  length  a 
compromise  was  reached  that  he  should  be  Prime  Minister 
tiU  the  end  of  the  then  current  session  (of  1896)  and  be 
succeeded  by  Sir  Charles  Tupper,  Bart.,  then  the  High 
Commissioner  in  London  and  one  of  the  most  forceful  and 
able    members    of    the    Conservative    Party.      Sir    Charles 


NOTES  TO  LECTURE  III  117 

entered  the  House  of  Commons  as  Leader  of  the  Govern- 
ment in>  that  House,  and  when  Parliament  was  prorogued 
he  became  Prime  Minister  and  proceeded  to  reorganise  the 
Cabinet,  which  was  sworn  in  May  1,  1896. 

7.  His  Premiership  was  short:  he  must  needs  go  to  the 
country  as  the  term  of  this,  the  seventh  Parliament,  had 
expired.  The  main  issue  at  this  election  was  whether  the 
Dominion  should  interfere  with  the  legislation  of  the  Prov- 
ince of  Manitoba  which,  it  was  claimed,  interfered  with 
rights  of  Roman  Catholics  in  respect  of  their  separate 
schools.  The  electorate  gave  a  decided  negative  to  the 
proposition.  At  the  election,  June  23,  1896,  there  was  a 
debdcle  comparable  to  that  of  1878  but  affecting  the  oppo- 
site party — the  Liberals  returned  119  against  89  Conserva- 
tives (there  were  3  Patrons  of  Industry,  "Grangers,"  and 
2  Independents).  Tupper  resigned  July  8,  without  waiting 
for  an  adverse  vote:  Laurier  was  sent  for  and  July  13  he 
completed  his  Cabinet. 

8.  Laurier's  Administration  weathered  the  General 
Election  of  November,  1900,  with  a  majority  of  53,  that 
of  November,  1904,  with  a  majority  of  52,  and  that  of 
1908  with  a  majority  of  47.  In  September,  1911,  Sir 
Wilfrid  took  the  opinion  of  the  electors  on  the  reciprocity 
offered  by  the  United  States — the  vote  was  adverse,  133  to 
88 — and  he  resigned  the  following  month. 

On  the  defeat  of  Sir  Charles  Tupper  in  1896,  he  had 
retired  from  Canadian  public  life  and  at  a  caucus  of  the 
party  in  1901,  Robert  Laird  Borden  was  elected  Leader  of 
the  Opposition. 

Mr.  (now  Sir)  Robert  Borden  was  sent  for  and  formed 
a  Ministry. 

9.  Sir  Robert  Borden's  Ministry  is  stUl  in  power. 

The  following  then  are  the  Prime  Ministers  of  Canada 
since  Confederation: 

1.  Sir  John  Alexander  Macdonald,  July  1,  1867,  to 
November  7,  1873. 

2.  Hon.  Alexander  Mackenzie,  to  October  17,  1878. 

3.  Sir  John  Alexander  Macdonald,  to  June,  1891. 

4.  Sir  John  J.  C.  Abbott,  to  December,  1892. 

5.  Sir  John  S.  D.  Thompson,  to  December,  1894. 

6.  Sir  Mackenzie  BoweU,  to  April,  1896. 

7.  Sir  Charles  Tupper,  Bart.,  to  July,  1896. 

8.  Sir  Wilfrid  Laurier,  to  October,  1911. 

9.  Sir  Robert  Laird  Borden,  to  . 

Sir  Wilfrid  Laurier  is  the  Leader  of  the  Opposition. 


118  CONSTITUTION  OF  CANADA 


In  the  Provikce  of  Ontario 

At  Confederation,  John  Sandfield  Macdonald  was 
entrusted  with  the  formation  of  a  Ministry  for  tlie  Prov- 
ince of  Ontario.  His  Ministry  was,  like  that  of  the 
Dominion,  ostensibly  non-party:  but  the  Liberal  Party  was 
as  little  tolerant  of  such  a  Government  in  the  Provincial 
as  in  the  larger  field.  It  was  not  organised,  however,  and 
the  first  General  Election  resulted  in  a  majority  for  the 
Government. 

1.  John  Sandfield  Macdonald  had  to  contend  with  a 
very  active  Opposition  whose  leaders  were  Edward  Blake 
and  Alexander  Mackenzie,  both  well  known  in  the  politics 
of  the  Dominion.  Of  the  82  Members,  46  were  nominally 
Liberals  and  36  Conservatives,  but  of  the  former  9  (after- 
wards known  as  "The  Nine  Martyrs")  supported  the 
Government.  At  the  General  Election  of  1871  the  numbers 
were  not  far  from  equal:  the  Government  suffered  defeat 
in  the  House  and  resigned,  December,  1871.  Mr.  Blake  was 
sent  for  by  His  Honour  and  formed  an  Administration. 

John  Sandfield  Macdonald  refused  to  attend  a  Con- 
servative caucus  and  Mr.  M.  C.  Cameron  was  elected 
Leader  of  the  Opposition. 

2.  The  Administration  of  Edward  Blake  did  not  last 
long — legislation  at  Ottawa  forbade  "Dual  Representation," 
i.e.,  the  same  person  being  member  of  both  the  Dominion 
and  the  Provincial  Parliament.  Mr.  Blake  and  Mr.  Mac- 
kenzie resigned  their  seats  in  the  Local  House:  and  advised 
His  Honour  to  send  for  Mr.  (afterwards  Sir)  Oliver 
Mowat,  then  a  Vice-ChanceUor  of  the  Court  of  Chancery. 
Mr.  Mowat  succeeded  in  forming  a  Ministry,  October,  1872. 

3.  The  Administration  of  (Sir)  Oliver  Mowat  was  the 
longest  in  the  history  of  Responsible  Government  in  any 
country,  lasting  as  it  did  from  1872  to  1896,  when  he 
resigned  to  take  a  place  in  the  new  Dominion  Administra- 
tion of  (Sir)  Wilfrid  Laurier.  He  survived  the  General 
Elections  of  1875,  1879,  1883,  1886,  1890  and  1894. 

On  the  resignation  of  Mowat,  he  was,  in  July,  1896, 
succeeded  by  Arthur  Sturgis   Hardy. 

4.  Mr.  Hardy  held  the  reins  of  power  until  failing 
health  compelled  him  to  retire  from  political  life — he 
resigned  October,  1899,  and  was  succeeded  by  Mr.  (after- 
wards Sir)  George  W.  Ross,  who  had  been  his  Minister 
of   Education. 

5.  Mr.  Ross  was  defeated  at  the  General  Election, 
January,  1905. 


NOTES  TO  LECTURE  III  119 

When  Mr.  M.  C.  Cameron  went  on  the  Bench  as  a 
Justice  of  the  King's  Bench,  he  was  succeeded  by  Mr. 
W.  H.  Scott,  Mr.  (afterwards  Sir)  William  Ralph  Mere- 
dith (now  Chief  Justice  of  Ontario),  Mr.  Marter,  Mr. 
Howland  and  finally  by  Mr.  (afterwards  Sir)  James  Pliny 
Whitney  in  succession  as  Leaders  of  the  Opposition.  Mr. 
Whitney  was  the  Leader  of  the  Opposition  (chosen  in 
caucus)  at  the  time  of  the  defeat  of  the  Ross  Adminis- 
tration: he  was  sent  for  and  formed  a  Government. 

6.  His  Government  remained  in  power  until  liis  death 
in  1915,  when  he  was  succeeded  by  Mr.  (now  Sir)  WUliam 
H.  Hearst. 

7.  Sir  William  Hearst  is  stiU  at  the  helm  of  the  Prov- 
ince. 

The  Prime  Ministers  of  Ontario  then  have  been: 

1.  John  Sandfield  Macdonald,  July  1,  1867,  to  Decem- 
ber, 1871. 

2.  Edward  Blake,  to  October,  1873. 

3.  Sir  Oliver  Mowat,  to  July,  1896. 

4.  Arthur  Sturgis  Hardy,  to  October,  1899. 

5.  Sir  George  W.  Ross,  to  January,  1905. 

6.  Sir  James  Pliny  Whitney,  to  1915. 

7.  Sir  William  H.  Hearst,  to  . 

After  the  retirement  of  (Sir)  George  W.  Ross  from 
Provincial  politics,  George  Graham  was  elected  Leader  of 
the  Opposition  in  Ontario  by  a  caucus  of  the  Reform 
Members  of  the  Legislature;  when  Mr.  Graham  went  to 
Ottawa  as  a  Minister  in  the  Laurier  Administration, 
Alexander  G.  McKay,  K.C.,  was  elected  in  his  stead  by 
the  same  body.  The  present  Leader  of  the  Opposition, 
N.  W.  Rowell,  K.C.,  was  chosen  at  a  Convention  of  the 
Reform  Party,  to  succeed  Mr.  McKay. 


LECTURE  IV 
A  COMPARATIVE  VIEW 

The  spectacle  of  two  peoples  growing  up  side 
by  side  on  the  same  Continent  with  substantially 
the  same  conceptions  of  liberty  and  justice,  with 
substantially  the  same  ancestry,  with  the  same 
language  and  religion,  the  same  literary  models, 
and  yet  with  diverse  political  methods,  is  one  of 
very  great  interest. 

Whether  it  is  better  for  a  nation  to  attain  self- 
government  by  one  stroke  severing  all  political 
and  national  connection  with  the  mother  country 
or  by  steady  pressure  of  a  constitutional  char- 
acter gradually  to  achieve  its  rights  without  a 
violent  severing  of  old  ties  or  abandonment  of  the 
old  flag,  is  a  matter  of  opinion,  of  temperament, 
perhaps  of  taste. 

The  English  Colonies  in  the  eighteenth  century 
followed  the  one,  Canada  the  other  course — and 
this  to  a  very  large  extent  explains  our  resem- 
blance in  national  matters  to  Britain. 

The  British  North  America  Act  is  a  Canadian 
production  as  much  as  the  Constitution  of  the 


A  COMPARATIVE  VIEW  121 

United  States  is  an  American  production;  in 
form  it  is  the  will  of  the  Imperial  Parliament,  in 
fact  the  will  of  Canadian  representatives  reduced 
to  the  form  of  a  Statute  for  formal,  legal  and 
"constitutional"  reasons. 

Naturally,  as  we  remain  part  of  the  British 
Empire,  the  Sovereign  is  the  head  of  our  State: 
he  cannot  be  present  in  person  and  therefore  has 
a  representative,  the  Governor-General,  whose 
powers^^  are  much  the  same  in  Canada  as  those 
of  the  King  in  the  United  Kingdom. 

The  real  power,  however,  is  in  the  Ministry, 
responsible  to  the  people's  representatives  in  the 
House  of  Commons. 

The  representation  in  the  House  of  Commons 
is  on  much  the  same  principles  in  both  Home 
Country  and  Dominion — we  have,  however,  gone 
further  in  providing  for  representation  by  popu- 
lation^ from  the  several  parts  of  the  Dominion, 
resembling  in  that  regard  the  United  States. 

In  the  Second  Chamber  there  are  fundamental 
differences — a  limit  is  placed  on  the  number  of 
Senators  and  the  principle  of  heredity  is  absent,^ 
as  it  must  be  in  a  democratic  nation.  The  limit 
placed  on  the  numbers  was  necessary  or  at  least 
was  undoubtedly  wise — the  numbers  from  the 
several  parts  of  the  Dominion  being  kept  within 
reasonable  limits. 


122  CONSTITUTION  OF  CANADA 

The  most  marked  differences  between  the 
Imperial  and  Dominion  Parliaments  arise  from 
the  facts  that  the  Imperial  authorities  must  keep 
within  their  own  hands  the  international  relations^ 
of  the  Empire  and  that  some  authority  must 
exist  to  protect  the  interests  of  the  Empire  as 
a  whole.  The  Imperial  Parliament  must  retain 
power  to  deal  with  British  subjects  all  over  the 
world:  Canada  is  not  specially  concerned  with 
matters  outside  of  her  own  boundaries.^ 

The  contrast  between  the  United  States  and 
Canada  is  more  far-reaching  than  that  between 
the  United  Kingdom  and  Canada. 

A  monarch  (called  a  President)  elected,  not 
born  and  in  consequence  of  birth  succeeding  under 
an  Act  of  Parliament,  ruling''  for  four  years  not 
for  life,  taking  not  only  an  active  but  even  a 
determining  part  in  the  government  of  the 
country,  really  and  not  simply  in  form  selecting 
his  Ministry,  a  Ministry  responsible  to  him  and 
not  to  the  people  or  their  representatives — it  is 
obvious  that  there  is  no  real  analogy  between  the 
President  and  our  King.  Nor  is  the  analogy 
strengthened  if  we  think  of  the  Governor-General 
instead  of  the  King  with  whom  to  compare  the 
President. 

The  nearer  analogy  would  be  between  President 
and  Prime  Minister;  but  the  President,  although 


A  COMPARATIVE  VIEW  123 

elected  directly  and  immediately  by  the  people 
(for  we  may  disregard  the  solemn  farce  of  the 
Electoral  College)  as  the  Prime  Minister  is 
indirectly  and  immediately,  has  when  elected  a 
fixed  term  of  office;  he  is  not  bound  to  retain  the 
confidence  of  the  people's  representatives — nay, 
he  may  in  safety  for  months  outrage  the  senti- 
ments of  the  majority  of  the  people  and  of  their 
representatives  as  Andrew  Johnson  did — for  since 
the  failure  of  the  proceedings  for  impeachment 
in  the  case  of  Andrew  Johnson,  no  President  need 
fear  that  bogy ;  it  is  as  dead  as  the  Royal  Veto. 

The  House  of  Representatives  and  the  House 
of  Commons  have  a  close  analogy  to  each  other: 
but  the  House  of  Representatives  once  elected 
need  not  fear  that  any  power  can  dissolve  it — its 
term  is  fixed  and  no  Prime  Minister  or  other 
person  can  send  its  members  back  to  their  con- 
stituents before  the  time  irrevocably  determined. 

In  a  word,  there  is  no  way  of  taking  the  opinion 
of  the  people  on  any  question. 

In  the  second  House,  the  American  Senator  is 
elected,  the  Canadian  appointed  by  the  existing 
Government;  the  former  for  a  fixed  term  of  years 
after  which  he  must  submit  his  record  to  his 
constituents,  the  latter  for  life,  irremovable  so 
long  as  he  keeps  solvent  and  innocent  of  crime 
and  is  able  once  in  two  years  to  attend  his  place 


124  CONSTITUTION  OF  CANADA 

in  Parliament — none  in  either  Senate,  however, 
transmitting  his  seat  and  title  to  a  descendant. 

In  legislation  the  great  and  overshadowing 
difference  between  the  United  States  and  Canada 
consists  in  the  written  Constitution  of  the  former 
limiting  and  defining  legislative  powers — i.e.,  in 
what  are  called  Constitutional  Limitations. 

"Littera  scripta  manet":  the  American  may 
say,  "I  stand  upon  the  letter  of  the  Constitution : 
let  the  heathen  rage  and  the  people  imagine  a  vain 
thing.'" 

And  does  all  this  not  show  that  the  Fathers  of 
the  Union  had  not  confidence  in  the  wisdom  and 
justice  of  the  people — the  electorate?  They  were 
not  content  to  leave  to  the  existing  or  to  future 
generations  the  power  to  act  contrary  to  what 
they,  these  fathers,  thought  just  and  right.  If 
it  was  not  "No  doubt  but  ye  are  the  people  and 
wisdom  shall  die  with  you,"  was  it  not  perilously 
near  to  it.^*  The  result  is  that  the  people  of  the 
United  States  of  America  are  governed,  in  part 
indeed,  by  the  Legislatures  elected  by  themselves, 
but  in  no  small  measure  by  the  hand  and  voice  of 
the  dead.^ 

This  is  the  essence  of  what  is  so  often  made 
a  boast,  namely,  that  its  government  is  a  govern- 
ment of  law  and  not  of  men.  Wherever  there  is 
a   written    Constitution    limiting    the    powers    of 


A  COMPARATIVE  VIEW,  125 

legislative  and  executive  bodies,  there  must  of 
necessity  be  a  judicial  body  to  interpret  the 
meaning  of  the  Constitution;  there  must  of  neces- 
sity be  a  tribunal  to  determine  the  meaning  of  the 
document  in  case  of  dispute.  That  tribunal  could 
not  well  be  the  Legislature  or  the  Executive  itself, 
but  it  must  be  a  separate  tribunal  and  can  only 
be  a  court.  The  absence  of  such  a  tribunal  means 
anarchy,  the  decision  as  to  the  limits  of  its  own 
power  under  a  written  Constitution  by  Legislature 
or  Executive  means  tyranny — neither  of  which 
the  Anglo-Saxon  can  bear. 

I  shall  now  give  a  few  examples  to  shew  how  in 
practice  the  written  Constitutions  in  the  United 
States  have  hampered  the  free  action  of  legis- 
lation, with  illustrations  from  our  Canadian  legis- 
lation. 

The  Federal  Constitution  provides  that  no 
State  shall  pass  any  law  impairing  the  obligation 
of  contracts — this  provision  has  had  far-reaching 
effects.  A  charter  granted  for  a  college  (e.g.)  is 
considered  a  contract.  For  example,  in  1769  the 
King,  George  III,  granted  to  the  Trustees  of 
Dartmouth  College  in  New  Hampshire  a  charter 
of  incorporation  as  a  private  charitable  insti- 
tution. After  the  Revolution  and  in  1816,  the 
Legislature  of  the  State  of  New  Hampshire  passed 
an  act  taking  away  from  the  trustees  the  govern- 


126  CONSTITUTION  OF  CANADA 

ment  of  this  college  and  vesting  it  in  the  Executive 
of  the  State — in  other  words,  changing  the  college 
from  a  private  to  a  state  institution.  The  act, 
while  continuing  the  trustees  as  a  corporation  as 
Trustees  of  Dartmouth  University,  purported  to 
form  a  new  body  called  a  Board  of  Overseers, 
of  whom  the  President  of  the  Senate  and  the 
Speaker  of  the  House  of  Representatives  of 
New  Hampshire,  the  Governor  and  Lieutenant- 
Governor  of  Vermont  were  ex-officio  members — 
and  to  this  Board  of  Overseers  was  given  the 
power  of  confirming  or  vetoing  the  acts  of  the 
trustees  relating  to  the  appointment  and  removal 
of  president,  professors  and  permanent  officers, 
the  determination  of  their  salaries,  the  establish- 
ment of  professorships,  the  erection  of  new  build- 
ings, etc.  The  Legislature  later  on  in  the  same 
year  passed  another  statute  making  it  an  offence 
for  any  one  to  act  as  president,  professor,  etc., 
except  in  conformity  with  the  Act  just  named. 
One  Woodward  had  been  secretary-treasurer  of 
the  corporation  before  the  passing  of  the  Acts, 
but  he  apparently  took  sides  with  the  Legislature 
(since  he  was  removed  by  the  Trustees  of  Dart- 
mouth College  before  the  last  Act)  and  he  was 
reappointed  by  the  Trustees  of  Dartmouth  Uni- 
versity organised  under  the  new  Acts.  The  old 
board  brought  an  action  against  him  for  taking 


A  COMPARATIVE  VIEW  127 

possession  of  the  books  of  their  records.  It  will 
be  seen  that  the  simple  question  was :  Had  the 
new  corporation  of  Trustees  of  Dartmouth  Uni- 
versity any  power?  That  depended  upon  whether 
the  acts  of  the  Legislature  were  valid.  The 
Supreme  Court  of  New  Hampshire  decided  that 
the  Legislature  had  not  exceeded  its  authority, 
and  so  dismissed  the  action:  and  an  appeal  was 
taken  to  the  Supreme  Court  of  the  United  States. 
The  case  for  the  old  board  was  argued  by  the 
celebrated  Daniel  Webster;^  and  the  Supreme 
Court  decided  that  the  charter  was  a  contract. 
The  Chief  Justice,  the  well-known  John  Marshall, 
says,  "It  can  require  no  argument  to  prove  that 
the  circumstances  of  this  case  constitute  a  con- 
tract." Then  the  court  proceeded  to  hold  that 
this  charter  was  a  contract  of  the  kind  protected 
by  the  Constitution,  and  that  the  Legislature  had 
no  right  to  change  it  in  any  way. 

In  Upper  Canada,  a  Royal  Charter  was  ob- 
tained from  George  IV  in  1827  for  the  University 
of  King's  College  at  or  near  the  town  of  York 
(now  Toronto).  It  contained  provisions  that  the 
Governor  should  be  Chancellor,  the  Anglican 
Bishop  of  Quebec  should  be  Visitor  and  the  Arch- 
deacon of  York  should  be  President  by  virtue  of 
their  offices,  that  all  members  of  the  Council  should 
be  members  of  the  Church  of  England  and  Ire- 


128  CONSTITUTION  OF  CANADA 

land,  and  that  students  in  divinity  must  take  the 
same  oaths  as  were  required  at  Oxford.  The 
Legislature  of  Upper  Canada  in  1837  took  away 
the  visitorship  from  the  Bishop,  the  presidency 
from  the  Archdeacon  and  abolished  all  religious 
tests  whatsoever. 

That,  however,  was  nothing  to  what  was  done 
twelve  years  later;  in  1849,  much  of  the  charter 
was  repealed  and  amended,  the  whole  constitution 
was  changed,  the  name  became  "The  University 
of  Toronto,"  the  Chancellor  elective,  and  he  was 
not  to  be  an  ecclesiastic  or  minister  of  any  faith.^° 
The  President  was  to  be  appointed  by  the  Provin- 
cial Administration,  the  Faculty  of  Divinity  was 
abolished,  a  Senate  formed,  and  the  property  of 
the  University  vested  in  a  new  board.  No  doubt 
King's  College  was  a  small  college  and  had  those 
who  loved  her,  but  no  dramatic  eloquence  even  of 
a  Daniel  Webster  would  have  induced  a  Canadian 
court  to  hold  that  the  Legislature  had  exceeded 
its  powers  in  such  legislation.  Very  many  such 
instances  are  to  be  found,  for  example  in  New 
Brunswick,  "the  University  of  New  Brunswick," 
in  Nova  Scotia,  and  elsewhere.  So  in  the  Domin- 
ion, but  the  other  day,  the  relation  of  the  Queen's 
University  to  the  Presbyterian  Church  was  radi- 
cally changed. 

In  the  provision  that  no  State  may  pass  a  law 


A  COMPARATIVE  VIEW  129 

impairing  the  obligation  of  contracts,  "contracts" 
is  considered  a  very  extensive  and  comprehensive 
term.  When  the  State  of  Georgia  had  granted 
certain  land,  this  grant  was  called  a  "contract" 
by  the  Supreme  Court,  and  an  Act  of  the  State 
Legislature  annulling  the  grant  upon  the  ex- 
pressed ground  of  fraud  was  held  to  be  uncon- 
stitutional.^^ In  Canada  no  one  doubts  that  the 
decision  would  have  been  the  other  way.  In  1897 
and  1899  certain  water  rights  were  given  on  and 
near  the  Kaministiquia  River  to  one  J. ;  these  were 
in  1902  taken  away  from  him  and  restored  in 
1904 — all  by  the  Province  of  Ontario. 

After  a  State  has  agreed  to  grant  lands  to  a 
company  upon  conditions,  and  the  grantee  has 
fulfilled  the  conditions  of  the  grant  and  so  earned 
the  lands,  it  is  not  competent  to  pass  further 
legislation  that  the  lands  shall  not  be  conveyed 
to  the  company  except  upon  a  further  condition.^^ 
In  Ontario,^^  a  certain  company  claimed  to  have 
fulfilled  all  the  conditions  necessary  under  the 
statute  to  entitle  it  to  the  grant  of  certain  mineral 
rights.  The  Government  disputed  the  right  of 
the  company,  and  made  a  sale  of  these  rights  to 
another  company.  An  action  was  brought,  but 
pending  the  action,  legislation  was  passed  declar- 
ing the  latter  company  entitled.  The  action  came 
on  for  trial  before  myself  and  I  declined  to  pass 


130  CONSTITUTION  OF  CANADA 

explicitly  upon  the  question  whether  the  require- 
ments of  the  statute  had  been  fulfilled  by  the 
original  company,  as  I  considered  this  quite 
immaterial.  I  held  that  even  supposing  the  first- 
named  company  owned  the  land,  the  Legislature 
had  the  power  to  take  it  away  and  give  it  to 
another.  This  view  of  the  law  was  approved 
by  the  Court  of  Appeal,  and  by  the  Judicial 
Committee  of  the  Privy  Council.  The  following 
language  was  used  in  my  judgment: 

"If  it  be  that  the  plaintiffs  acquired  any 
rights  .  .  .  the  Legislature  had  the  power  to 
take  them  away.  The  prohibition  'Thou  shalt 
not  steal'  has  no  legal  force  upon  the  sovereign 
body." 

This  decision  made  some  commotion,  and  it  was 
attacked  by  some  who  should  have  known  better. 
They  based  their  attack  chiefly  on  the  provisions 
of  Magna  Charta,  not  knowing  or  not  appre- 
ciating that  a  British  Legislature  has  the  power 
to  repeal  even  Magna  Charta  so  far  as  it  affects 
the  territory  subject  to  such  Legislature;  and, 
indeed,  most  of  Magna  Charta  is  repealed  in 
Ontario.^* 

An  agreement  by  a  State  Legislature  to  bind 
its  own  hands  by  a  grant  so  as  to  preclude  it  from 
exercising  its  sovereignty  in  that  regard  in  the 
future  has  been  held  by  the  Supreme  Court  to  be 


A  COMPARATIVE  VIEW  131 

valid  in  certain  cases  of  taxation  and  exclusive 
privileges.  Whether  the  police  power  can  be  thus 
alienated  is  a  different  and  a  difficult  question. 
But  in  Canada,  "the  Legislature  has  no  power  to 
control  by  anticipation  the  actions  of  any  future 
Legislature  or  of  itself."^^ 

I  have  already  indicated  the  powers  of  a  Cana- 
dian Legislature  in  respect  of  private  property. 
It  may  be  said  broadly  that  a  Provincial  Parlia- 
ment has  the  power  to  say  that  Blackacre,  now 
the  property  of  A,  shall  hereafter  be  the  property 
of  B — and  so  it  will  be — and  that  without  the 
necessity  of  making  compensation.  The  whole 
learning  as  to  Eminent  Domain  is  of  no  interest 
in  Canada.  The  Legislature  may,  indeed,  direct 
compensation  to  be  paid;  but  that  is  in  no  sense 
necessary. 

In  many  jurisdictions,  e.g..  New  York,  Michi- 
gan, Alabama,  it  has  been  considered  that  the 
State  cannot  authorise  owners  of  mill-privileges 
to  expropriate  the  land  above  in  order  to  increase 
the  head.  In  Ontario,  we  have  long  had  such 
legislation,  and  no  one  has  doubted  its  validity. 
Compensation  is,  indeed,  directed  by  the  Act  to 
be  paid:  but  that  is  not  at  all  necessary  for  the 
validity  of  the  statute. 

A  statute  of  New  York  authorised  any  person 
to  take  into  his  custody  any  animal  trespassing 


132  CONSTITUTION  OF  CANADA 

upon  his  lands  and  to  give  notice  to  the  justice  or 
a  commissioner  of  highways  of  the  town,  who 
should  proceed  to  sell  the  animal  after  posting 
notices.  This  was  held  invalid  in  the  Courts .^^ 
In  Ontario^^  any  one  may  distrain  a  trespassing 
animal  on  his  land.  If  this  animal  be  a  horse, 
cow,  pig,  etc.,  he  may  either  take  it  to  the 
public  pound  or  retain  it,  giving  notice  to  the 
clerk  of  the  municipality.  After  certain  notices, 
the  animal  may  be  sold  if  not  redeemed  or 
replevined. 

The  State  Legislature  cannot  authorise  the 
compulsory  extinguishment  of  ground  rents  on 
payment  of  a  sum  in  gross.^^  But  in  Prince 
Edward  Island,  lands  which  had  been  in  the 
possession  and  ownership  of  "Proprietors"  and 
their  predecessors  in  title  for  many  years  were 
taken  from  them  by  the  Act  of  1874!  upon  pay- 
ment into  the  Treasury  by  the  Government  of  a 
lump  sum,  determined  by  commissioners.  This, 
indeed,  is  not  unlike  "eminent  domain,"  since  the 
act  is  passed  for  "the  contentment  and  happiness 
of  the  people,"  and  there  was  "no  reasonable  hope 
of"  the  Proprietors  "voluntarily  selling  their 
Township  lands  to  the  Government  at  moderate 
prices." 

In  Quebec,  as  we  have  seen,  the  land  was  at  first 
held    in    seigniority,    the    seignior    (generally    a 


A  COMPARATIVE  VIEW  133 

noble)  had  under  him  the  censitaires  or  tenants, 
"habitans"  they  called  themselves,  who  were  bound 
to  render  certain  services,  pay  certain  rents,  etc. 

In  1854,  the  united  Province  of  Canada  directed 
the  value  of  all  these  rights  to  the  seignior  to  be 
determined  by  commissioners  appointed  by  the 
Governor,  and  upon  their  report  being  filed,  and 
notice  thereof  published  in  the  Official  Gazette,  the 
habitant  was  relieved  of  all  duties,  etc.,  except 
the  fixed  yearly  rent,  and  thereafter  held  his  land 
in  franc-aleu  roturier — at  his  option  he  might  pay 
a  lump  sum  once  for  all. 

In  this  instance  all  the  feudal  duties  were 
turned  into  a  money  payment — yearly,  indeed, 
unless  the  tenant  paid  a  lump  sum.  No  one 
doubts  that  when  the  Legislature  said  that  a  lump 
sum  might  be  paid  instead  of  the  rente  constituee, 
it  was  perfectly  valid  legislation. 

So  at  Westminster,  in  the  Imperial  Act  of  1869, 
by  which  the  Irish  Church  was  disestablished, 
there  was  a  provision  taking  away  all  right  of 
advowson  or  power  of  appointment  to  a  church. 
Such  a  right  becomes  effective  only  at  certain — 
or  rather  uncertain — intervals ;  but  the  Parlia- 
ment took  it  away  entirely  and  directed  the  former 
owner  if  he  applied  for  compensation  within 
three  years  to  be  paid  a  lump  sum  fixed  by 
commissioners. 


134  CONSTITUTION  OF  CANADA 

In  the  United  States  it  is  said  the  Legislature 
cannot  validate  an  invalid  trust  or  will,^°  or  give 
land  absolutely  to  one  who,  under  a  will,  received 
it  under  a  restraint  against  alienation.^^  In 
Ontario  Mr.  Goodhue  left  a  perfectly  valid  will, 
the  residuary  estate  to  accumulate  during  the 
lifetime  of  his  widow;  and  he  directed  that  if  any 
of  his  children  died  during  the  lifetime  of  the 
widow,  their  children  should  take  their  parents' 
share.  This  did  not  suit  the  children  of  the 
decedent:  they  wanted  their  share  at  once  and 
they  executed  a  deed  whereby  each  of  them  was' 
to  have  his  share  at  once — in  other  words,  they 
tried  to  take  away  the  possibility  which  the  will 
created  in  favour  of  grandchildren.  The  Legis- 
lature in  1871  passed  an  Act  declaring  the  deed 
valid;  and  the  court  was  forced  to  uphold  the 
transaction.^^  The  court  did  not  doubt  the  power 
of  the  Legislature  to  pass  statutes  wherein  "from 
oversight  or  any  other  cause  provisions  should  be 
inserted  of  an  o.bjectionable  character,  such  as  the 
deprivation  of  innocent  parties  of  actual  or  pos- 
sible interest  by  retroactive  legislation." 

Drainage  of  agricultural  lands  across  the  lands 
of  others  is  a  taking  of  private  property  for 
private  use  and  in  violation  of  the  Fourteenth 
Amendment.^^     We  have  a  whole  series  of  acts 


A  COMPARATIVE  VIEW  135 

allowing  this  very  thing,  and  no  Fourteenth 
Amendment  stands  in  the  way. 

Not  far  removed  from  the  right  of  property 
comes  the  right  to  bring  an  action.  It  is  said 
that  Congress  has  no  power  to  protect  parties 
assuming  to  act  under  the  authority  of  the  central 
government  during  the  Civil  War  by  depriving 
persons  who  had  been  illegally  arrested  of  all 
redress  in  the  courts."*  The  Act  of  Congress 
providing  "that  any  order  of  the  President  or 
under  his  authority,  made  at  any  time  during  the 
present  rebellion,  shall  be  a  defence  in  all  courts 
to  any  action  or  prosecution  pending,  or  to  com- 
mence for  any  search,  seizure,  arrest,  or  imprison- 
ment, made,  done  or  committed  .  .  ."  was,  ac- 
cordingly, held  to  be  invalid. 

In  Canada  we  have  had  statutes  of  indemnity; 
e.g.,  in  1838,  after  the  "Rebellion,"  an  Act  was 
passed"^  which  recited  that  before  and  during  the 
"insurrection"  it  became  necessary  for  Justices 
of  the  Peace,  officers  of  the  militia  and  others  in 
authority  in  the  Province,  and  also  for  loyal 
subjects,  to  apprehend  persons  charged  or  sus- 
pected of  joining  in  the  insurrection.  The  Act 
then  provided  that  all  proceedings  brought  for 
such  acts  should  be  void,  and  the  persons  who 
had  committed  them  were  indemnified;  all  such 
proceedings  were  to  be  stayed,  and  if  the  plaintiffs 


136  CONSTITUTION  OF  CANADA 

went  on  they  should  be  liable  for  double  costs. 
No  one  had  the  slightest  idea  that  this  Act  was 
not  perfectly  valid. 

So  in  Ireland,  a  similar  Act  was  passed  after 
the  Rebellion  of  1798;  and  also  in  Cape  Colony 
in  1836,  1847  and  1853;  in  Ceylon  in  1848;  in 
St.  Vincent  in  1862,  and  in  New  Zealand  in  1865 
and  1867.  In  Jamaica  after  the  Rebellion  of 
1865,  the  Legislature  passed  an  Act  of  Indemnity 
which  had  the  effect  of  preventing  the  prosecution 
of  actions  against  Governor  Eyre. 

It  is,  indeed,  said  that  the  people  of  a  State, 
by  amendment  of  their  Constitution,  may  validly 
take  away  rights  of  action  and  other  rights  as  it 
is  considered  that  they  are  not  thereby  imposing 
a  punishment  or  impairing  the  obligation  of  a 
contract.  This  was  done  by  the  State  of  Mis- 
souri and  others ;  all  right  of  action  for  anything 
done  during  the  war  by  Federal  or  State  troops 
was  taken  away.^^ 

Some  of  the  differences  between  the  two  coun- 
tries depend  upon  a  principle  to  which  the  courts 
in  the  United  States  pay  much  respect — the 
principle  of  equal  rights.  One  judge  exclaims, 
"Can  it  be  supposed  for  a  moment  that  if  the 
Legislature  should  pass  a  general  law  and  add  a 
section  by  way  of  proviso  that  it  should  never 
be  construed  to  have  any  operation  or  effect  upon 


A  COMPARATIVE  VIEW  137 

the  .  .  .  rights,  etc.,  of  A.  L.  or  J.  G.,  such  a 
provision  would  receive  the  sanction  or  even  the 
countenance  of  a  court  of  law?""^ 

The  Dominion  Act  of  1903,"^  gives  jurisdiction 
to  the  Exchequer  Court  of  Canada  to  order  the 
sale  of  any  railway  at  the  instance  of  the  Minister 
of  Railways  or  of  any  creditor,  to  appoint  a 
receiver,  etc. ;  but  "Sec.  8  of  this  Act  shall  not 
apply  to  or  authorize  proceedings  against  the 
C.  O.  Railway  .   .   ." 

While  in  cases  of  succession  duties  an  arbitrary 
statutory  exemption  is  sustainable,'^  yet  if  such 
an  arbitrary  exemption  is  applied  only  to  estates 
lower  in  value  while  those  which  are  larger  have 
no  exemption  at  all,  this  is  in  some  States  void 
and  invalidates  the  whole  statute,^" — but  this 
seems  to  be  doubted  in  other  courts :  Tennessee 
and  Massachusetts.^^  In  Ontario,  all  estates 
under  ten  thousand  dollars  are  absolutely  exempt, 
as  are  all  passing  to  certain  relatives  under  one 
hundred  thousand  dollars;  and  the  larger  ones 
have  no  exemption. 

A  statute  of  a  State  providing  for  service  upon 
the  agent  of  a  non-resident  doing  business  in  the 
State  has  been  held  to  be  void.^"  In  Ontario, 
every  non-provincial  company  before  procuring 
a  license,  must  have  an  agent  within  Ontario  upon 
whom  service  may  be  made:  and  every  person  who 


138  CONSTITUTION  OF  CANADA 

within  Ontario  transacts  or  carries  on  any  of  the 
business  or  any  business  for  any  corporation 
whose  chief  place  of  business  is  without  Ontario, 
shall  for  the  purpose  of  being  served  with  "writ 
of  summons"  be  deemed  the  agent  thereof. 

A  statute  attempting  to  restrict  the  right  of 
banking  to  corporations  is  held  in  the  United 
States  to  be  bad,^^  although  apparently  the  re- 
striction is  good  if  the  business  be  insurance,  at 
least  in  Pennsylvania.^*  By  a  Dominion  Act^^  it 
is  provided  that  every  one  who  uses  or  assumes  the 
title  of  "bank,"  "banking  company,"  "banking 
house,"  "banking  association,"  or  "banking  insti- 
tution" without  being  authorised  to  do  so  is 
guilty  of  an  offence  rendering  him  liable  to  a  fine 
of  one  thousand  dollars,  or  imprisonment  for  five 
years,  or  both;  and  only  incorporated  companies 
are  eligible  for  authorisation. 

In  the  United  States,  it  seems  that  an  Act 
requiring  persons  paying  less  than  twenty-five 
dollars  in  taxes  to  pay  a  licence  fee  will  be  held 
bad,^®  and  a  regulation  limiting  to  transients  only 
requirement  of  a  licence  is  equally  obnoxious  to 
equality.®^  But  such  regulations  are  of  daily 
occurrence  in  Canada. 

An  Act  providing  for  raising  money  to  pay 
bounties  to  private  producers  of  beet  sugar  is 
invalid   in   the   United   States.^®      We   have   paid 


A  COMPARATIVE  VIEW  139 

bounties  to  private  producers  of  steel,  pig-iron, 
etc.,  and  bounties  to  private  producers  of  beet 
sugar  are  not  unknown.  At  the  session  of  1916, 
a  bounty  was  voted  for  the  production  of  zinc. 

No  city,  it  is  said  in  the  United  States,  can  be 
allowed  to  raise  taxes  with  which  to  aid  manu- 
facturing establishments.^^  We  do  it  every  day 
and  in  most,  if  not  all,  of  the  cities  and  in  many 
of  the  towns  and  even  the  villages  of  Ontario. 

In  the  United  States,  it  is  decided  that  taxes 
must  be  for  a  public  purpose  and  while  the  sup- 
port of  a  State  university  is  a  public  purpose,  the 
creation  of  free  scholarships  and  allowances  to 
needy  students  is  not,  even  though  these  should 
be  granted  after  public  and  competitive  exami- 
nation.*°  We  would  have  no  difficulty  in  such  a 
case. 

In  Illinois  and  New  Hampshire  it  seems  that 
owners  of  property  cannot  be  compelled  to  keep 
the  sidewalk  opposite  their  property  clear  of 
snow.*^  But  in  Toronto  many  a  citizen  has  found 
his  way  to  the  police  court  because  he  has 
neglected  to  obey  an  ordinance  to  that  effect. 

A  railroad  apparently  cannot,  with  you,  be 
made  liable  for  live-stock  killed  by  it,  in  the 
absence  of  negligence  on  its  part.*"  By  our  Rail- 
way Act  when  any  stock  at  large,  whether  upon 
the  highway  or  not,  gets  upon  the  property  of 


140  CONSTITUTION  OF  CANADA 

the  railway  and  is  killed  or  injured  by  a  train, 
the  railway  must  pay  unless  it  prove  that  the 
stock  got  at  large  through  the  negligence  of  the 
owner;  and  the  company  must  pay  for  damage 
to  crops,  etc.,  caused  by  fire,  negligence  or  no 
negligence.  Not  wholly  dissimilar  legislation  has 
been  passed  in  several  States,  and  apparently  held 
good.*^ 

Some  differences  depend  upon  the  hypothesis 
that  the  Legislature  is  an  agent,  delegatus:  and 
of  course,  Bentham  or  no  Bentham,  delegatus  non 
potest  delegare.  For  example,  a  State  Legisla- 
ture cannot  authorise  a  board  of  health  to  make 
general  rules ;  nor  can  it  leave  to  an  official  finally 
to  determine  what  shall  be  done  to  make  factories 
and  workshops  sanitary,  or  the  extent  of  expro- 
priation for  waterworks.** 

In  the  Canadian  "constitution,"  Parliament 
and  Legislatures  are  not  considered  "delegatus" 
at  all — not  delegates  even  of  the  Imperial  Par- 
liament at  Westminster,  from  whose  statute  the 
Canadian  Legislative  bodies  derive  their  powers. 
The  highest  court  in  the  Empire  has  said,  "They 
are  in  no  sense  delegates  of  or  acting  under  any 
mandate  from  the  Imperial  Parliament  .  .  .  the 
Provincial  Legislature  having  .  .  .  the  authority 
to  impose  imprisonment  with  or  without  hard 
labour,    had     also     power    to     delegate     similar 


A  COMPARATIVE  VIEW  141 

authority  to  the  body  which  it  created,  called  the 
License  Commissioners.  .  .  ."*^  "It  was  argued 
at  the  bar  that  a  Legislature  committing  impor- 
tant regulations  to  agents  and  delegates,  effaces 
itself.  That  is  not  so.  It  retains  its  powers 
intact,  and  can,  whenever  it  pleases,  destroy  the 
agency  it  has  created  and  set  up  another,  or  take 
the  matter  into  its  own  hands.  How  far  it  shall 
seek  the  aid  of  subordinate  agencies,  and  how 
long  it  shall  continue  them,  are  matters  for  each 
Legislature  and  not  for  courts  of  law  to  deter- 
mine." In  fact,  it  may  be  said  generally  that 
anything  a  Legislature  can  do  itself,  it  can  depute 
to  another  subordinate  body  to  do.  I  conse- 
quently do  not  give  particular  instances  or 
further  pursue  this  subject. 

Where  courts  have  given  an  interpretation  to 
the  words  of  a  statute,  it  is  not  open  to  the  State 
Legislature  to  put  another  construction  upon 
these  words  so  as  to  have  a  retroactive  effect.*® 
No  such  limitation  of  the  power  of  Parliament 
or  Legislature  is  thought  of  in  Canada.  Moreover 
there  are  many  statutes  (e.g.,  in  insurance)  which 
are  expressly  made  applicable  not  only  to  future 
but  also  to  existing  contracts. 

The  Legislatures  in  the  United  States  cannot 
validly  provide  that  cases  pending  in  the  Courts 
under  an  existing  law  shall  be  dismissed.*^       In 


142  CONSTITUTION  OF  CANADA 

1909,  the  Legislature  of  the  Province  of  Ontario 
passed  a  statute*^  which  provided  that  every 
action  theretofore  brought  wherein  the  validity 
of  a  certain  contract  or  any  by-law  passed  or 
purporting  to  be  passed,  authorising  its  execution 
by  a  municipal  corporation,  was  attacked,  should 
be  "forever  stayed."  One  of  such  actions  came 
on  for  trial  before  me — the  evidence  had  been 
taken  before  the  passing  of  the  Act  but  decision 
not  yet  given  when  the  Act  was  passed.     I  said:*® 

This  action  it  is  plain  comes  within  the  letter  as 
well  as  the  spirit  of  this  Act.  The  Legislature  has 
said  that  this  action  shall  be  stayed.  My  duty  is 
"loyally  to  obey  the  order  of  the  Legislature/'  the 
action  is  accordingly  stayed. 

While  the  wording  of  the  statute  is  that  the  action 
shall  be  "forever  stayed,"  the  Legislature  has  no 
power  to  control  by  anticipation  the  actions  of  any 
future  Legislature  or  of  itself;  it  may  be  that 
this  legislation  may  be  repealed  .  .  .  the  result  is 
that  the  stay  ordered  by  the  statute  has  the  effect  of 
causing  the  Court  to  retain  the  action  with  no  pro- 
ceedings to  be  taken  therein  unless  and  until  the 
legislation  is  in  some  way  got  rid  of. 

This  decision  was  affirmed  on  appeal,  an  appeal 
hopeless  from  the  very  first.^° 

An  order  to  State  officers  not  to  engage  in 
politics  and  not  to  make  public  speeches  is  void.^^ 


A  COMPARATIVE  VIEW  143 

Our  Canadian  practice  is  to  continue  a  man  in 
public  office  for  life,  but  if  he  engages  in  politics 
or  makes  public  speeches,  he  is  dismissed,  at  least 
when  the  other  party  come  into  power — and  no 
one  doubts  that  such  an  order  as  has  been  held 
void  in  the  United  States  would  be  perfectly  valid 
with  us. 

Then  as  to  the  Dominion  and  Provincial  Courts. 
The  construction  put  upon  the  statutes  of  a  State 
by  the  State  Courts  is  generally  followed  by  the 
Supreme  Court  of  the  United  States.  The 
Supreme  Court  of  Canada  does  not  consider  itself 
at  all  bound  by  the  Provincial  Courts.  In  a  case 
tried  by  myself  in  which  I  gave  judgment  for  the 
plaintiff,  the  whole  question  was  one  of  inter- 
pretation of  an  Ontario  statute — the  Court  of 
Appeal  for  Ontario  sustained  my  judgment.  In 
the  Supreme  Court,  the  two  judges  who  had  come 
from  Ontario  agreed  in  that  interpretation,  but 
three  judges — one  from  Quebec,  one  from  Prince 
Edward  Island  and  one  from  British  Columbia — 
took  another  view,  and  the  appeal  was  allowed. 
The  Judicial  Committee,  indeed,  restored  the 
original  judgment. ^^ 

But  I  think  I  have  given  sufficient  instances 
now  to  illustrate  the  radical  difference  in  many 
respects  of  the  two  Constitutions. 

1.     In  the  United  States  the  President  and  the 


144  CONSTITUTION  OF  CANADA 

Governors  of  the  States  (speaking  generally) 
have  as  much  power  as  George  III,  and  in  some 
respects  more;  the  Governor-General  and  the 
Lieutenant-Governors  are  like  George  V. 

2.  Times  and  seasons  are  set  in  the  United 
States  for  change  of  legislatures,  none  in  Canada. 

3.  The  Government  of  the  United  States  can 
claim  no  powers  which  are  not  granted  by  the 
Constitution — it  is  a  government  of  enumerated 
powers:  the  Dominion  of  Canada  has  all  the 
powers  not  granted  to  the  Provinces. 

4.  The  Constitution  of  the  United  States 
contains  a  hard  and  fast  standard  set  by  people 
of  one  generation  for  their  successors :  that  of 
Canada  may  be  changed  in  a  day. 

5.  In  the  United  States 

The  Moving  Finger  writes,  and,  having  writ 
Moves  on:  nor  all  your  Piety  nor  Wit 
Shall  lure  it  back  to  cancel  half  a  line, 
Nor  all  your  tears  wash  out  a  word  of  it. 

Perhaps  in  University  circles  you  would  prefer 
the  Latin  version — here  it  is : 

It  digitus,  cerae  scribuntur,  scriptaque  durat 
littera:  tu  sapiens  sis  licet  atque  pius 
"dimidium  dele"   frustra  obtestabere   "versum," 
non  fiet  lacrimis  ulla  litura  tuis.^^ 


A  COMPARATIVE  VIEW  145 

No  interpretation  by  the  courts  of  the  meaning 
of  the  words  of  the  statutes,  can  the  Legislature 
correct:  no  contract  created  by  legislation,  how- 
ever unwise,  can  be  cancelled:  no  grant,  however 
improvident,  can  be  recalled:  no  action  based 
upon  existing  law  can  be  stayed  or  dismissed:  no 
gain,  however  ill-gotten,  can  be  taken  away  from 
one  who  obtained  it  by  legal  means  however  scaly : 
no  college  can  be  brought  under  such  governance 
as  the  whole  State  may  desire  and  perhaps  need, 
if  it  can  appeal  to  some  old  charter  or  grant.^* 

In  the  United  States  the  courts  are  supreme: 
in  Canada,  the  people  through  their  representa- 
tives; in  the  one  country  a  few  men  say  to  the 
legislating  bodies,  "Thus  far  shall  thou  go  and 
no  further,"  in  the  other  the  legislating  bodies  say 
to  the  courts,  "Thus  far  and  thus  shalt  thou  go 
and  no  further  or  otherwise." 

In  the  United  States,  half  a  dozen  men  sitting 
up  in  a  quiet  chamber  can  paralyse  the  activity 
of  a  Senate  and  House,  may  say  that  a  measure 
imperatively  called  for  in  the  public  interests 
cannot  be  validly  enacted:  and  the  legislators, 
the  people,  are  helpless — that  is  called  Republi- 
canism, democratic  government ;  and  there  is 
searching  of  soul  and  shaking  of  heads,  when  any 
one  suggests  that  the  people  be  asked  if  that  little 
coterie    have    correctly    interpreted    the    popular 


146  CONSTITUTION  OF  CANADA 

will  formerly  and  formally  expressed  in  a  State 
Constitution.  In  Canada  should  the  court  fail  to 
apprehend  the  real  intention  of  an  enactment,  any 
government  which  can  command  the  support  of 
the  people  can  at  once  correct  the  error. 

Paley,  when  speaking  of  a  view  held  by  some 
writers  concerning  the  Constitution  of  England, 
says :  "These  points  are  wont  to  be  approached 
with  a  kind  of  awe:  they  are  represented  to  the 
mind  as  principles  of  the  constitution,  settled  by 
our  ancestors,  and  being  settled,  to  be  no  more 
committed  to  innovation  or  debate,  as  foundations 
never  to  be  stirred,  as  the  terms  and  conditions 
of  the  social  compact  to  which  every  citizen  of  the 
State  has  engaged  his  fidelity  by  virtue  of  a 
promise  which  he  cannot  now  recall."  Is  not  that 
the  point  of  view,  the  feeling  of  the  American? 
Paley  adds,  "Such  reasons  have  no  place  in  our 
system." 

The  framers  of  the  Constitution  of  the  United 
States  have  used  every  endeavour  to  ward  off 
what  they  consider  the  worst  of  all  governments, 
an  unbalanced  democracy  which  is  supposed  to  be 
necessarily  pregnant  with  a  democratical  tyranny 
(I  use  the  words  of  Erskine)  thinking  (to  use  the 
words  of  Locke)  "that  the  people  being  ignorant 
and  always  discontented,  to  lay  the  foundation  of 
government  in  the  unsteady  opinion  and  uncertain 


A  COMPARATIVE  VIEW  147 

humour  of  the  people,  is  to  expose  it  to  certain 
ruin."  It  is  in  the  power  of  the  people  to  change 
the  Constitution  indeed,  but  not  at  once — and  the 
"sober  second  thought"  is  what  is  so  often  spoken 
of  and  so  often  appealed  to.  Is  it  always  certain 
that  the  first  thought  is  wrong:  and  the  second 
thought  right? 

With  Burke  I  say  "If  you  ask  me  what  a  free 
government  is,  I  answer,  That  it  is  what  the 
people  think  so,  and  that  they  and  not  I  are  the 
natural,  lawful  and  competent  judges  of  this 
matter."    And  so  I  leave  it. 

No  doubt  some  citizens  of  this  Republic  will 
say :  What  a  barbarous  country  is  Canada !  the 
courts  are  not  secure  in  their  jurisdiction,  the 
interpretation  put  upon  statutes  by  the  court 
may  be  reversed  by  the  Legislature,  any  man  may 
be  deprived  of  his  property  without  due  course 
of  law — why,  even  a  legislator  after  he  has  been 
elected  does  not  know  how  long  he  may  continue 
such.  Surely  property  must  be  insecure,  enter- 
prise and  industry  at  a  discount,  the  courts  an 
object  of  contempt,  the  Government  an  object  of 
awe  not  unmixed  with  terror!  What  a  country 
for  a  white  man  to  live  in ! 

So  a  Canadian  who  did  not  happen  to  know 
better  might  exclaim.  Why,  what's  the  use  of  a 
Senate  and  House  of  Representatives  or  House 


148  CONSTITUTION  OF  CANADA 

of  Assembly,  when  their  hands  are  tied  by  the 
letter  which  killeth,  when  they  cannot  even  "boss" 
a  court?  What  kind  of  a  country  is  it  where  no 
matter  how  offensive  and  discreditable  a  govern- 
ment may  be,  you  cannot  get  rid  of  it  till  a  time 
fixed  beyond  control?  What  a  paper-governed, 
court-ridden  country ! 

And  yet,  have  we  not  here  an  illustration  of 
the  saying,  "It  is  not  so  much  the  form  of  a  con- 
stitution as  the  spirit  in  which  government  is 
carried  on,  not  so  much  the  law  as  the  men  who 
administer  it,  which  count"? 

In  your  land  as  in  mine  the  Government  and 
legislators  respond  pretty  well  to  public  senti- 
ment— a  little  more  quickly,  a  little  more  slowly — 
both  lands  get  the  government  they  deserve.  At 
odd  times,  the  courts  will  with  you  check  for  a 
while  useful  legislation,  but  it  gets  enacted  at  last 
some  way  or  another.  A  lawyer  trained  in  the 
interpretation  of  Constitutions,  the  "Philadelphia 
lawyer"  of  proverbial  note,  can  see  much  differ- 
ence between  "tweedledum  and  tweedledee";  and 
a  method  can  always  be  found,  without  giving 
the  court  or  the  Constitution  too  cruel  a  jolt,  for 
allowing  to  the  people  what  they  really  demand 
and  insist  upon. 

In  Canada,  nobody  is  at  all  afraid  that  his 
property  will  be  taken  from  him;  it  never  is,  in 


A  COMPARATIVE  VIEW  149 

the  ordinary  case.  Our  people  are  honest  as 
peoples  go,  and  would  not  for  a  moment  support 
a  government  which  did  actually  steal ;  a  new 
government  would  be  voted  into  power  and  the 
wrong  righted.  We  will  not  submit  to  have  our 
great  public  works  delayed  by  cranks  or  the 
litigious,  but  even  a  crank  or  litigious  person 
must  be  paid  a  full  price  for  his  property;  our 
courts  I  venture  to  think  are  as  much  respected — 
(excluding  myself)  are  as  worthy  of  respect — 
as  those  of  any  country  in  the  world;  many  of 
our  best  men,  men  of  high  type,  seek  election  to 
the  House  of  Commons  and  the  Legislatures;  and 
if  any  Government  in  the  United  States  could  be 
treated  to  more  railing  accusations  and  with  more 
contempt  than  Canadian  Governments  are  by  their 
political  opponents,  I  should  marvel  at  it.  An 
American  feels  himself  at  home  at  once  in  Canada, 
a  Canadian  crossing  the  border  does  not  feel  that 
he  is  entering  a  foreign  or  a  strange  land ;  neither 
can  notice  any  difference  in  the  law  any  more 
than  in  the  language  or  in  the  habits  of  the  people. 
Once  he  escapes  the  custom-house  either  feels  him- 
self a  native — unless  he  is  a  fool  either  by  nature 
or  through  misplaced  or  spurious  patriotism. 

Indeed,  we  are  in  all  but  the  accident  of  political 
allegiance,  one  people:  we  have  lived  together  in 
peace  with  an  international  boundary  of  thousands 


150  CONSTITUTION  OF  CANADA 

of  miles,  for  more  than  a  century  (may  that  peace 
be  eternal),  our  aims  are  the  same,  justice  to  all 
under  the  law,  good  will  to  all  men,  peace  and 
righteousness.  With  these  aims  in  common,  we 
are  working  and  shall  work  out  our  destiny  side 
by  side  and  in  much  the  same  way,  an  example 
and  a  blessing  to  humanity. 


NOTES  TO  LECTURE  IV 

1  It  has,  indeed,  been  more  than  suggested  that  the 
powers  of  the  Governor-General  in  Canada  are  in  some 
cases  in  excess  of  the  powers  of  His  Majesty  at  West- 
minster— the  matter  is  of  no  importance  but  is  largely 
academic. 

In  one  particular  the  Governor-General  is  at  a  dis- 
advantage— he  cannot  confer  knighthoods,  etc.;  he  can  only 
recommend  the  Imperial  authorities  to  have  the  honour 
conferred.  The  constitutional  position  of  the  Governor- 
General  in  recommending  for  such  honours  does  not  seem 
well  determined  (the  Cabinet  has  been  known  to  disclaim 
responsibility  for  a  recommendation),  but  an  appointment 
distasteful  to  the  Cabinet  would  scarcely  be  made,  while 
it  is  probable  that  the  Governor-General  would  not  refuse 
to  recommend  for  such  an  honour  one  whom  he  was  asked 
by  the  Prime  Minister  to  recommend. 

Knighthoods  may,  perhaps,  be  compared  to  University 
Honorary  Degrees — if  the  President  recommends  any  one 
for  such  a  degree,  it  requires  rather  strong  objection  on 
the  part  of  the  Senatus  Academicus  to  prevent  the  recom- 
mendation carrying;  but  he  would  not  force  a  distasteful 
candidate  on  the  University.  Knighthoods  are  State 
Honorary  Degrees,  and  carry  with  them  the  incidental 
advantage  that  the  wife  acquires  also  a  title  for  life;  the 
advantages  (if  any)  are  purely  social  and  have  no  political 
significance. 

2  Representation  by  Population,  "Rep.  by  Pop.,"  we  have 
seen  had  much  to  do  with  the  creation  of  the  Dominion. 
See  ante.  Lecture  I,  p.  28. 

3  The  power  to  make  the  membership  in  the  Second 
Chamber  hereditary,  contained  in  the  Canada  Act  of  1791, 


152  CONSTITUTION  OF  CANADA 

31  George  III,  c.  31  (see  ante,  pp.  57,  77,  80,  81),  was 
never  exercised,  and  the  provision  was  not  repeated  in 
subsequent  Acts. 

4  Even  in  dealings  with  the  United  States,  we  utilise 
the  British  Ambassador  at  Washington;  we  conduct  our 
own  negotiations,  but  aU  treaties,  etc.,  are  in  the  name  of 
the  King. 

5  Of  course  she  is  interested  in  common  with  all  the 
rest  of  the  Empire  in  aU  that  affects  the  Empire,  but  her 
special  concern  is  Canada. 

6  The  difference  between  King  and  President  has  been 
tersely  put  thus — the  King  reigns  but  does  not  rule,  the 
President  rules  but  does  not  reign. 

7  Much  of  what  follows  is  practically  the  same  as  what 
will  be  found  in  my  Address  before  the  Iowa  State  Bar 
Association  at  Cedar  Rapids,  Iowa,  June  28,  1912. 

8  Of  course  there  is  the  power  of  adding  Amendments 
to  the  Constitution  of  the  United  States — and  the  State 
Constitutions  are  amended  from  time  to  time,  but  that  does 
not  affect  the  truth  of  what  I  have  said. 

9  At  the  banquet  of  the  Illinois  State  Bar  Association 
at  Chicago,  May  28,  1914,  Mr.  Henry  M.  Bates,  Dean  of  the 
Faculty  of  Law  in  the  State  University  of  Michigan,  said: 

"Mr.  Justice  Riddell  remarked  that  perhaps  it  would 
have  been  as  well  if  the  Dartmouth  College  Case  had  been 
decided  contrary  to  the  doctrine  which  we  lawyers  have 
struggled  with  so  long.  I  daresay  he  is  quite  right  about 
that,  for  it  seems  to  be  rather  the  consensus  of  opinion, 
that  Daniel  Webster  overdid  the  matter.  Now  I  was  some- 
what surprised  a  while  ago  when  a  colleague  in  the  depart- 
ment of  history  in  the  University  of  Michigan  informed 
me  that  he  had  recently  seen  a  letter  written  by  Daniel 
Webster  before  he  undertook  the  case,  a  letter  to  the  other 
side  asking  to  be  retained  on  that  side  of  the  question." 
Proceedings  of  the  Illinois  State  Bar  Association  (1914<), 
p.  300. 


NOTES  TO  LECTURE  IV  153 

What  I  had  said  was  this: 

"Not  many  years  ago,  in  conversation  with  a  retired 
Justice  of  the  Supreme  Court  of  the  United  States,  I  ven- 
tured to  express  the  opinion  that  no  harm  would  have 
accrued  if  two-thirds  of  the  cases  in  that  court  had  been 
decided  the  other  way;  he  answered,  'If  you  leave  out  the 
constitutional  cases  I  should  agree,  and  indeed  I  think  you 
might  increase  the  percentage  considerably.'  The  modesty 
of  one  not  thoroughly  acquainted  with  the  Constitutions  of 
the  United  States  and  of  the  States  of  the  Union,  one  who 
lives  in  a  country  without  a  Constitution  (and  likes  it), 
prevented  me  when  speaking  to  an  authority  on  these,  from 
questioning  my  friend's  exception.  I  venture,  however,  here 
to  submit  to  you  the  consideration — What  harm  would  have 
been  done  if  Daniel  Webster  had  failed  in  the  Dartmouth 
College  case?  Your  law  would  have  been  different,  but 
would  it  have  been  worse?  Is  your  law  better  for  the  people 
at  large — and  it  is  the  people  it  must  always  have  in  its 
care — than  if  it  were  as  in  England  and  Ontario?  Are 
even  your  corporations  during  the  sittings  of  Congress  and 
Legislature  any  more  comfortable  than  ours  or  those  in 
England?  And  after  all,  has.  the  effect  been  much  more 
than  to  oblige  legislatures  to  introduce  into  private  charters 
a  clause  reserving  the  power  to  repeal  or  alter  them — just 
as  it  is  said  that  practically  the  whole  effect  of  the  Statute 
of  Uses  was  to  introduce  five  words  into  conveyances? 

"Did  the  decisions,  or  either  of  them,  on  the  constitu- 
tionality of  taxation  of  incomes  do  any  good?  and  would 
any  harm  have  been  done  if  they  had  been  the  other  way? 
No  constitutional  amendment  would  have  been  necessary, 
but  what  of  it?  Would  any  one  have  been  injured  if  he 
were  validly  taxed  under  the  Constitution  as  it  stood,  rather 
than  under  an  amendment?  And  does  it  feel  any  more 
pleasant  or  hurt  any  less  to  pay  an  income  tax  than  if  it 
had  been  levied  under  the  document  of  the  Fathers? 

"Did  the  'Dred  Scott'  decision  settle  anything?    Perhaps 


154  CONSTITUTION  OF  CANADA 

it  hastened  an  inevitable  conflict,  but  did  it  do  more?  Was 
the  conflict  not  inevitable  under  any  decision,  and  was  it 
rendered  less  intense,  costly,  bloody,  terrible,  by  the  decision 
actually  given? 

"Most  hesitatingly  and  meekly  (as  becomes  an  outsider) 
I  venture  to  suggest  to  you  that  aU  the  decisions  of  the 
Supreme  Court  are  overborne  in  importance  by  the  one 
decision  of  the  Senate  of  the  United  States  when  that  body 
refused  to  dismiss  Andrew  Johnson;  for  in  all  human 
probability  there  will  never  be  another  impeachment  of  a 
President  of  the  United  States  for  the  reason  that  he  does 
not  agree  with  the  majority  of  the  people  or  of  Congress; 
the  President  is  as  firmly  seated  on  his  throne  and  is  as 
truly  a  monarch  for  the  term  for  which  he  is  elected  as 
any  king  or  emperor  in  Christendom.  Benjamin  Robbins 
Curtis'  success  before  that  tribunal  was  of  vastly  more 
significance  and  of  vastly  greater  importance  to  the  United 
States  and  its  people  than  would  have  been  success  in  the 
Supreme  Court  when  he  delivered  the  superb  dissenting 
judgment  which  wiU  continue  to  be  the  greatest  glory  of 
his  name  so  long  as  Courts  endure  and  lawyers  reason. 

"Does  not  the  decision  of  the  New  York  Court  of 
Impeachment  that  a  Governor  of  that  State,  their  two-year 
King,  must  behave  himself  according  to  their  views  of 
honesty  and  propriety  before  as  well  as  after  his  inaugura- 
tion, overtop  in  importance  the  decision  of  the  unconsti- 
tutionality of  employers'  liability  legislation?  Did  this  do 
more  than  call  for  an  amendment,  inevitable  if  the  people 
wanted  it?  And  what  possible  harm  could  have  been  done 
had  the  decision  been  the  other  way?"  Proceedings  of  the 
Illinois  State  Bar  Association   (1914),  pp.  357,  358. 

10  The  Church  of  England  did  not  "lie  down,"  but 
formed  "Trinity  University,"  which  but  tlie  other  day  sus- 
pended its  University  powers  and  came  into  our  University 
of  Toronto  Federation  as  an  Arts  College. 

11  Fletcher  v.  Peck,  6  Cranch  87,  136. 


NOTES  TO  LECTURE  IV  155 

12  De  Groff  v.  St.  Paul,  etc.,  R.  R.  Co.,  23  Minn.  144. 

13  This  case  has  already  been  mentioned  ante,  pp.  99,  112, 
but  is  here  repeated  for  convenience  of  reference,  Florence 
V.  Cobalt  (1908),  18  O.  L.  R.  275. 

14  See  Smith  v.  London  (1909),  20  O.  L.  R.  at  pp.  140, 

141. 

15  See  Smith  v.  London  (1909),  20  O.  L.  R.  at  p.  142. 

16  Rockwell  V.  Nearny,  35  N.  Y.  307. 

17  See  the  Revised  Statutes  of  Ontario  (1914),  c.  247. 

18  Palairet's  Appeal,  67  Pa.  St.  479. 
i9Frewen  v.  Frewen  (1875),  10  Ch.  Ap.  610. 

20  Hilliard  v.  Paul,  10  Pa.  St.  326. 

21  Spink  V.  Brown,  61  Pa.  St.  327;  Atter's  Appeal,  67 
Pa.  St.  341. 

22  Re  Goodhue  (1872),  19  Grant's  Chancery  Reports 
(Ontario),  366. 

Scarcely  a  session  of  the  Ontario  L,egislature  passes 
without  legislation  changing  the  dispositions  made  by  will 
or  settlement.  The  proposed  Statute  is,  in  practice,  sub- 
mitted to  two  Judges  of  the  Supreme  Court  of  Ontario- 
all  Judges  of  the  Supreme  Court  are  paid  $1,000  by  the 
Province  per  annum  for  this  and  other  services  not  purely 
judicial.  The  Judges  take  all  the  circumstances  into  con- 
sideration and  advise  the  Legislature  upon  the  bill,  its 
fairness  and  justice.  Without  a  favourable  report,  the  bill 
does  not  pass  in  Committee. 

23  Re  TuthiU,  163  N.  Y,  133. 

24  Griffin  v.  Wilcox,  21  Ind.  370:  Johnson  v.  Jury,  44 
lU.  142. 

25  (1838)  I  Vic,  c.  12  (U.  C). 

26  Dupman  v.  Shetel,  41  Mo.  1&4,  8  Wall.  645. 

27  Lewis  V.  Webb,  3  Mo.  326. 

28  (1903)  3  Edward  VII,  c.  21   (Dom.). 

29  State  V.  FurneU,  39  L.  R.  A.  170. 

30  State  V.  Ferris,  53  Ohio  St.  34:  30  L.  R.  A.  218. 

31  See  26  L.  R.  A.  259:  28  L.  R.  A.  178. 


156  CONSTITUTION  OF  CANADA 

32  Calanne  v.  Grat,  92  N.  W.  461. 

33  State  V.  Scangal,  15  L.  R.  A.  4T4:  44  Am.  St.  756. 

34  Commonwealth  v.  Vrooman,  164  Pa.  306:  25  L.  R.  A. 
250. 

35  Revised  Statutes  of  Canada  (1906),  c.  29,  ss.  156,  157. 

36  State  V.  Mitchell,  53  Atl.  887. 

37McGrand  v.  Marion,  98  Ky.  673:  Kinsely  v.  Cotterel, 
196  Pa.  St.  614. 

38  Michigan  Sugar  Co.  v.  Auditor  General,  124  Mich.  674. 

39  Parkersburg  v.  Brown,  106  U.  S.  687:  Cole  v.  La 
Grange,  113  U.  S.  1. 

40  State  V.  Switzer,  143  Md.  287. 

41  Gridley  v.  Bloomington,  88  111.  554:  State  v.  Jackman, 
69  N.  H.  318.    See  44  Pa.  438. 

42  Jensen  v.  Union  Pacific  R.  Co.,  21  Pac.  Rep.  994. 

43  Frazer  v.  Pere  Marquette  (1906),  180  L.  R.  589, 

44  State  V.  Burdge,  95  Wise.  390:  Schaezlein  v.  Cahannis, 
135  Cal.  466:  Stearns  v.  Barre,  73  Vt.  281. 

45  Hodge  V.  the  Queen  (1883),  9  A.  C.  at  pp.  132,  133, 
134. 

46  Greenough  v.  Greenough,  11  Pa.  St.  489. 

47  State  V.  Adams,  44  Mo.  570. 

48  (1909)  9  Edward  VII,  c.  19  (Ont.). 

49  Smith  V.  London  (1909),  20  O.  L.  R.  at  p.  142. 

50  The  boy  in  the  story  said,  "What  mother  says  is  so, 
is  so  if  it  isn't  so";  we  say,  "What  the  Legislature  says  is 
law,  is  law  if  it  isn't  law." 

51  Lonthan  v.  Conn.,  79  Va.  196. 

52  Thompson  v.  Equity  Insurance  Company,  (1910), 
A.  C.  592:  (1909)  41  Can.  Sup.  Ct.  Rep.  491. 

53  Not  my  version — I  wish  I  could  claim  it. 

54  The  late  Prof.  Hugo  Miinsterberg,  with  that  acute 
appreciation  of  the  psychology  of  others  which  character- 
ised him,  says  of  the  American,  "his  democratic  belief  in 
the  power  of  black  and  white  is  unlimited."  If  that  be  so, 
it  will  explain  much  which  the  Canadian  is  as  yet  unable 


NOTES  TO  LECTURE  IV  157 

to  understand.  ("The  Americans,"  Williams  &  Norgate, 
London,  1916,  p.  377.) 

I  may  be  permitted  to  add  here  an  extract  from  my 
Address  on  "The  Administration  of  Justice"  before  the 
Illinois  State  Bar  Association,  1914  (Proceedings,  etc.,  pp. 
8,  9): 

"The  Court  is  not  (at  least  in  my  country)  the  master 
of  the  people,  but  their  servant,  supported  by  them  for  their 
own  use  and  in  their  service;  the  judge  is  paid  by  the 
people  to  do  their  work,  and  just  as  soon  as  the  Court 
is  not  worth,  directly  or  indirectly,  what  it  costs,  it  should 
be  abolished — directly  in  adjudicating  upon  the  rights  of 
litigants,  indirectly  in  preventing  civil  wrongs,  turmoil, 
assaults,  thefts,  trespasses,  in  the  time-honored  phrase 
'maintaining  the  King's  peace.' 

"A  Court  does  not  exist  for  itself;  it  is  not  an  end  in 
itself.  A  Court  is  an  evil  and  the  less  it  is  called  into  play 
the  better  for  the  community  unless  the  evils  arising  from 
this  course  will  be  greater  than  those  arising  from  the  more 
frequent  exercise  of  its  functions. 

"When  Congress  was  proposing  to  give  American  coast- 
ing vessels  a  privilege  in  the  Panama  Canal  not  granted  to 
other  ships,  and  Britain  made  a  protest,  basing  her  claims 
upon  treaty  (I  am  not  going  to  discuss  the  rights  and  the 
wrongs  of  the  matter,  the  American  people  are  guardians 
of  their  own  honour  and  need  no  advice  or  opinion  from  me 
or  any  other  non-American),  my  friend  of  the  United  States 
Supreme  Court  said  to  me,  'I  hope  that  question  will  go  to 
The  Hague.'  I  answered,  'I  hope  not' ;  and  when  he  wonder- 
ingly  asked  why,  I  said:  'I  hope  there  wUl  be  no  necessity, 
I  hope  that  the  nations  wiU  settle  the  matter  without  liti- 
gation; there  is  no  saying  what  heart-burnings  and  discon- 
tents may  arise  over  the  decision;  we  in  Canada  stiU 
remember  the  Alaska  Boundary  Award,  and  no  one  has  a 
right  to  expect  a  repetition  of  the  extraordinary  good  for- 
tune which  followed  the  Fishery  Award  at  The  Hague  the 


168  CONSTITUTION  OF  CANADA 

other  day  when  each  party  claimed  substantial  victory. 
A  settlement  between  the  parties  themselves  is  infinitely 
to  be  preferred  to  a  reference  or  litigation  of  any  kind.' 
My  friend  was  not  wholly  convinced;  he  was  an  American 
and  consequently  thought  that  'there  is  nothing  like  a 
Court.' " 


INDEX 


INDEX 


Abbott,  Sir  John  J.  C,  Prime  Minister  of  Canada,  his 
Administration,  116 

Alberta,  Province  of,  formed  (1905),  38 

Ashburton-Webster  Treaty  (1842),  28,  42 

Assembly,  House  of,  ordered  by  Instructions  (1763),  9,  54, 
55,  57,  58;  not  desired  by  French-Canadians,  11;  why? 
12;  under  Constitutional  Act  (1791),  19,  21,  22,  57,  58, 
59,  60,  63;  under  Union  Act  (1840),  24,  63;  under 
B.  N.  A.  Act,  (Provincial  House),  66,  67,  68,  70 

Authorities  on  Canadian  Constitution    (Preface) 

B 

Banalites  under  French-Canadian  Law,  6,  7 

Banks  and  Banking,  restricted  in  Canada,  138 

Barclay,    Hon.    Thomas,    British    Commissioner    on    Maine 

Boundary,  41 
"Bastonais"  (Bostonians,  New  Englanders),  natural  enemies 

of  the  French-Canadians,  15 
Blake,  Hon.  Edward,  Leader  of  Opposition  at  Ottawa,  116; 

do.  at  Toronto,  118;   Prime  Minister  of  Ontario,   118, 

119;  M.  P.  at  Westminster,  118 
Borden,    Sir    Robert    Laird,     Leader    of    Opposition    at 

Ottawa,  105;  Prime  Minister,  107,  114,  117 
Bowell,   Sir   Mackenzie,   Senator,    113;   Prime   Minister   at 

Ottawa,  116,  117 
British  Columbia,  history  of,  37,  38;  joins  Dominion  (1871), 

38 


162  INDEX 

British  North  America  Act  (1867),  a  Canadian  production, 

120,    121;    passed,    32,    65;    provisions    of,    65    sqq.; 

amended,  66 
Brown,  Hon.  George,  Leader  of  Reform  (Liberal  or  Grit) 

Party,   49;   urged   "Rep.   by   Pop.,"   29,   49;    Coalition 

with  Macdonald,  29,  115 
Burke,  Edmund,  on  Free  Government,  147 

0 

"Cabinet,"  what,  93 

Cameron,   Sir   Matthew   Crooks,   Leader  of   Opposition   at 

Toronto,    118 
Canada,  conquest  and  cession  of,  1;  invasion  by  Arnold,  2; 
condition  before  Conquest,  3;   criminal  law  of,  4,   5; 
Province    of,     formed     by     Union    Act     (1840),    24; 
Dominion  of,  formed  by  B.  N.  A.  Act  (1867),  32,  65 
Canada  East  (Lower  Canada),  formed  in  1791,  19;  popu- 
lation in  1840,  25;  in  1850,  28 
Canada  West   (Upper  Canada),  formed  in  1791,   19;  first 
Parliament     (1792),    19;    Executive    Council,    an    oli- 
garchy, 20;  population  in  1840,  25;  in  1850,  28 
Carleton,  Sir  Guy,  Lord  Dorchester,  Governor  of  Canada, 

2,  15,  46 
Carleton,  Thomas,  Governor  of  New  Brunswick,  35 
Church  of  England  to  be  established  in  Quebec,  56 
Civil  Law  of  Rome  basis  of  French-Canadian  Law,  9 
Civil  War  in  U.  S.  A.,  efiFect  on  Confederation,  30 
Clarke,  Sir  Alured,  Lieutenant-Governor  of  Quebec,  45 
"Clergy  Reserves"  under  Act  of  1791,  opposed  by  Fox,  18 
Colonies,  The  Thirteen,  rebellion,  2;  desire  to  have  Canada 
join,  2;  alarm  at  tolerance  of  Roman  Catholicism,  15,  44 
Commons,  House  of  (Dominion),  66,  Q9,  70;  money  bills,  71; 

compared  with  House  of  Representatives,  123 
Confederation,    motion    for    in    Canadian    Parliament,    29; 
coalition  looking  to,  29;  Charlottetown  Conference,  30; 
Quebec  Conference,  30;  Civil  War  and  "Trent  aflfair," 


INDEX  163 

effect  of,  30;  Reciprocity  Treaty,  31;  approved  by 
Imperial  Government,  31;  by  Canada,  31;  by  Nova 
Scotia,  31;  rejected  and  then  approved  by  New  Bruns- 
wick, 31;  Prince  Edward  Island  rejects,  32;  effected 
by  B.  N.  A.  Act  (1867),  32 

Conference  at  Charlottetown  (1864),  30;  at  Quebec  (1864), 
30 

Congress,  Continental,  Address  of  to  Canadians,  2,  15,  44; 
to  People  of  England,  44 

"Constitution,"  what,  in  English  usage,  52,  74,  90;  in 
American,  52,  53;  in  Canadian,  52,  53,  54,  74,  91 

"Constitutional  (or  Canada)  Act"  (1791)  passed,  18;  pro- 
visions of,  19 

Contracts,  inviolability  of,  125-129,  152,  153 

Corvee,  in  French  Canada,  7 

Council  in  French  Canada,  5;  under  Royal  Proclamation  of 
1763,  10,  11,  54;  under  Quebec  Act  (1774),  14,  16; 
under  Constitutional  Act  (1791),  59,  60,  61 

Council,  Executive,  for  Provinces  of  Dominion,  71 

Council,  Legislative,  under  Constitutional  Act  (1791),  19, 
57;  hereditary?  46,  57;  under  Union  Act  (1840),  24,  63; 
contained  French-Canadians,  26;  elective  in  1856,  63; 
in  Provinces  of  Dominion,  67,  68,  70,  103 

Council,  Privy,  for  Canada,  71;  what,  93;  does  not  sit, 
93,  107 

Courts,  power  of  to  declare  legislation  "unconstitutional," 
100  sqq.;  Dominion  Courts  not  bound  by  Provincial 
Courts,  143 

D 

Dartmouth  College  Case,  125,  126,  152,  153 
Disallowance  of  Dominion  Acts,  96,  97,  111;  do. 

of  Provincial  Acts,  97,  98,  100 
Durham,  Lord,  Governor-General  of  Canada,  22 ;  his  Report, 
23,    63;    his    character,    23;    recommends    Responsible 
Government,  25;   and  Confederation  of   British   North 
American  Colonies,  28,  29 


164  INDEX 


E 


"Eminent    Domain,"    learning    of,    practically    useless    in 

Canada,  131,  133 
"Equal  Rights"  principle  in  U.  S.  Courts,  136,  137 
"Equal  Rights  Party"  in  Canada,  105,  106 


"Family  Compact"  in  Upper  Canada,  what,  21 
"Fourteenth  Amendment,"  effect  of  in  U.  S.,  134 
Fox,  Charles  James,  opposed  Constitutional  Act  (1791),  18 
French-Canadians,  loyalty  of  in  1775-1776,  2 

G 

Gait,  Sir  Alexander  Tulloch,  moved  in  Canadian  Assembly 

for  Commission  on  Confederation,  29 
Gibbon,  Edward,  the  historian,  his  conservatism,  48 
Governor-General  of  Canada,  70;  his  powers,  72,  91,  93,  94, 

121,  151 
Governor  (Lieutenant)  of  Province,  70;  his  powers,  72,  91, 

94;   responsible  to  Dominion  Administration,  94,   107, 

108 
Graham,  Hon.  George,  Leader  of  the  Opposition  in  Ontario, 

119 
"Grangers"  (Patrons  of  Industry),  political  party,  106,  107 

H 

"Habitans,"  what,  4 

Hardy,  Hon.  Arthur  Sturgis,  Prime  Minister  of  Ontario, 

118,  119 
Hearst,  Sir  William  H.,  Prime  Minister  of  Ontario,  119 
Howland,  Oliver,  Leader  of  the  Opposition  in  Ontario,  119 


INDEX  165 


"Jesuits'  Estate  Act,"  see  Equal  Rights  Party- 
Judges,  appointment  of,  72 

Jury  System,  disliked  by  French-Canadians,  12,  13;  insisted 
on  by  English,  13,  18;  present  practice  in  Ontario,  42 

K 

King's  College,  Toronto,  Charter  revoked,  127,  128 
Knighthoods,  81;  how  granted,  151 


Labrador,  under  care  of  Newfoundland,  38 

Laurier,  Sir  Wilfrid,  Leader  of  Opposition  at  Ottawa,  105, 

116;  Prime  Minister  of  Canada,  114,  117 
Law:  civU  law  of  French  Canada  based  on  Roman  CivU 

Law,  8,  9,  56 
Criminal  law  of  French  Canada  barbarous,  9;  replaced  by 

English  criminal  law,  9,  56 
"Leader  of  the  Opposition,"  what,  92;  how  chosen,  92,  106, 

115,  116,  117,  119 
Legislative  Power  of  Dominion,   84,  85,   98,   100,   111,   112, 

113,   130-142;   of   Provinces,   85,   98,   99,   100,   112,   113, 

130-142 
Locke  on  Free  Government,  146 
Lymburner,    Adam,    represented    the    English    settlers    in 

Quebec  before  House  of  Commons   (1791),  18 

M 

Magna  Charta,  power  of  Dominion  and  Province  to  repeal, 

130 
Marter,  Mr.  G.  S.,  Leader  of  the  Opposition  in  Ontario, 

119 
Meredith,  Sir  William  Ralph,  Leader  of  the  Opposition  in 

Ontario,  119 


166  INDEX 

Minister,  Prime  (or  Premier),  what,  92,  93 

"Ministry,"    what,   91,   92,    93,   94;    actually   rule,   91,    121; 

collective  responsibility,  96 
Money  bUls,  originate  in  House  of  Commons,  71,  95,  96,  100 
Mowat,  Sir  Oliver,  Prime  Minister  of  Ontario,  118,  119 
Miinsterberg,  Prof.  Hugo,  on  Americans,  156 
Murray,  General  James,  Governor  of  Quebec,  Instructions 

to  (1763),  54 

Mc 

Macaulay,  Thomas   Babington,  Lord,  mentioned,  43 
Macaulay,  Zachary,  a  petitioner  against  Quebec  Act,  43 
Macdonald,  Sir  John  Alexander,  opposed  "Rep.  by  Pop.," 

29;  formed  Coalition  to  effect  Confederation,  29;  his 

Administrations,  115;  death,  116 
Macdonald,  John  Sandfield,  Prime  Minister  of  Ontario,  118 
McKay,  Hon.  A.  G.,  Leader  of  the  Opposition  in  Ontario, 

119 
Mackenzie,   Alexander,   Leader   of   Opposition   at   Ottawa, 

115;  his  Administration,  109,  110,  114 


N 

New    Brunswick    formed    (1784),    35;    part    of    Dominion 

(1867),  36 
Newfoundland  declined  to  enter  Dominion,  38,  39 
Northwest  Territories,  how  governed,  38,  68 
Nova  Scotia,  settled  by  English,  32;  first  Council   (1720), 

33;    first    Assembly     (1758),    34;    part    of    Dominion 

(1867),  32,  34 

O 

Oath  of  Supremacy  waived  for  Roman  Catholics,  16,  45,  56 
Opposition,  Leader  of,  what  and  how  chosen,  91,  92,  106, 
115,  116,  117,  119 


INDEX  167 


Paley,  William,  on  the  Constitution  of  England,  146 

Party  System  in  full  force  in  Canada,  91 

Party,  "Equal  Rights,"  105,  106 

Party,  "Grangers"  (Patrons  of  Industry),  106,  107 

"Patrons  of  Industry,"  see  "Grangers,"  106,  107 

Pitt,  WiUiam  (Jr.),  passed  Constitutional  Act  (1791),  18 

President  of  the  United  States,  compared  with  King,  122, 

144,   152;  with  the   Governor-General  of   Canada,   122, 

123,  144;  Impeachment  of,  123 
Prince  Edward  Island,  history  of,  36,  37;  incident  in  early 

history,  49,  50;  refused  to  join  Dominion  of  Canada, 

32;  admitted  (1873),  36 
Provinces  of  Dominion  of  Canada,  32,  36,  37,  38 
Provincial  Legislatures,  66,  67,  68 

Q 

Quebec,   conquest   of    (1759),   turning   point   in   American 
history,  1,  8;  siege  of  by  Arnold,  2 
"Government"  of,  formed  by  Royal  Proclamation  (1763), 

9,  10;  extent  of  "Government,"  40 
Province  of,  formed  by  B.  N.  A.  Act  (1867),  14 
"Quebec  Act"  (1774),  passed,  2,  13;  contents  of,  14;  effect 

of,  16 
Queen's   University,   Kingston,  Ontario,  affected  by  legis- 
lation of  Dominion,  128 

R 

Railway,    Intercolonial,    desire    for,    a    cause    of    union    of 

British  N.  A.  Provinces,  28 
Rebellion  of  1837-1838,  causes  of,  21,  22,  62,  135 
Religion  of  French-Canadians  not  interfered  with,  8,   12, 
14,  56;  "idolatrous  and  bloody,"  13;  (see  Roman  Catho- 
lics in  Parliament,  infra) 


168  INDEX 

"Rep.  by  Pop.,"  what,  and  eflFect  in  inducing  union  of  Brit- 
ish N.  A.  Provinces,  28,  121,  151 

Responsible  Government,  what,  61,  102;  claimed  in  Canada, 
20,  21,  22;  granted,  24,  64;  recommended  by  Lord 
Durham,  25;  claimed  in  Nova  Scotia  and  obtained,  34; 
in  New  Brunswick,  35;  in  Prince  Edward  Island,  37; 
in  British  Columbia,  38,  39 

Richelieu,  Cardinal,  introduces  French  Feudal  System  in 
Canada  (1627),  4 

Roman  Catholics  in  Parliament  in  Canada,  12,  18,  45;  in 
Nova  Scotia,  34 

Ross,  Sir  George  W.,  Prime  Minister  of  Ontario,  118,  119 

RoweU,  Newton  W.,  Leader  of  Opposition  in  Ontario,  119 

Royal  Proclamation  (1763),  occasion  and  effect,  9,  10,  40; 
annulled  (1774),  14 

RusseU,  Lord  John,  Colonial  Secretary,  passes  Union  Act 
(1840),  23 


"Sarum,  Old,"  before  Reform  Bill,  47,  48 

Saskatchewan,  Province  of,  formed  (1905),  38 

Schools,  Denominational  or  Separate,  protected  by  B.  N.  A. 

Act  (1867),  72,  117 
Scott,  W.  H.,  Leader  of  the  Opposition  in  Ontario,  119 
Seigniorial  Tenure  described,  3-7;  introduced  into  Canada 

by  Richelieu  (1627),  4;  abolished  (1854),  4,  132,  133 
Senate  of  Dominion  of  Canada,  66,  68,  69;  how  members 
appointed   in   fact,   95;   qualifications   of   members,   83, 
83;  increase  of  number,  109,  110;  movement  to  abolish, 
102,  103,  114;  utility  of,  102,  114;  compared  with  House 
of  Lords,  123;  with  Senate  of  U.  S.,  123 
Simcoe,  Colonel  John  Graves,  first  Lieutenant-Governor  of 
Upper  Canada,  Address  of,  to  the  first  Upper  Canadian 
ParUament   (1792),  47 
Smith,  William,  Chief  Justice  of  Quebec,  proposal  of,  to 
unite  British  North  America,  49 


INDEX  169 

Southey,  Robert,  Poet  Laureate,  conservatism  of,  48 
Speaker  of  House  of  Assembly  how  chosen,  24,  38 

of  Legislative  Council  how  chosen,  24,  58,  70 

of  House  of  Commons  how  chosen,  58 

of  Senate  of  Canada  how  chosen,  69 
Stuart,    Sir    James,    Bart.,    afterwards    Chief    Justice    of 
(Lower)  Canada,  drafts  Union  Act  (1840),  23 


Territories,  Northwest,  what  and  how  governed,  38,  68 
Thompson,   Sir  John   Sparrow  David,   Prime  Minister  of 

Canada,  116 
Treaty  of  Paris   (1763),  provisions  of,  9,  12 
Definitive  (1783),  provisions  of,  41 
of  Ghent  (1814),  provisions  of,  41 
Ashburton-Webster  (1842),  provisions  of,  28,  42 
"Trent  Affair,"  effect  of,  on  Confederation,  30 
Tupper,  Sir  Charles,  Bart.,  Prime  Minister  of  Canada,  116, 
117;  defeated  at  Polls,  117 

U 

"United  Empire  Loyalists"  in  Western  Canada,  17;  chief 

settlements,  45 
Union  Act  of  1840,  passed,  23;  effect,  24 
University  of  Toronto,  chartered,  128 
of  New  Bruns\vick,  affected  by  Provincial  legislation,  128 
Queen's,  Kingston,  Ontario,  affected  by  Dominion  legis- 
lation, 128 


Vancouver  Island  (see  British  Columbia) 
Van    Ness,   Cornelius    P.,    U.    S.    Commissioner   on   Maine 
Boundary,  41 


170  INDEX 


W 


Wark,  Hon.  David,  centenarian  Senator,  113 

Washington,  George,  incident  in  life  of,  50 

Webster,  Daniel,  negotiated  Treaty  of  1842,  42;  Dartmouth 
CoUege  Case,  127,  128,  152,  153 

Whitney,  Sir  James  PUny,  Leader  of  Opposition  in  Ontario, 
119;  Prime  Minister  of  Ontario,  119 

Wills  may  be  affected  by  Provincial  legislation,  134 

William,  King  of  Netherlands,  arbitrator  on  Maine  Bound- 
ary dispute  (1827),  his  award  unsatisfactory  (1831),  41 

Y 

Yukon  Territory,  what,  38;  how  governed,  68 


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